Can my wife travel back to US with me ?

[abhisheks77]

Hi,

Both of us are on L1B and L2B visa, which is valid till 31st October 2015. We will be travelling to India on 9th October 2015. My H1B is picked and I got RFE. Keeping in mind that I have less time for all this process, my manager approved it to convert into premium process.
I have already forwarded required documents to attorney, in response to RFE and they are preparing it. Now problem is, attorney files my wife's H4B separately, so her case will not be considered as premium and not bound to be replied in 15 days as usual. They file her H4B on 8/17. Since my case is premium, I can be approved before 9th October, but she may not. In this case, I can come back on 13th November, but she will not be able back.
I spoke to attorney and they replied - " We will discuss with your company's internal legal team, alternate measures to have the H-4 COS processed as quickly as the H-1B Cap petition.
Please note that in the event that your wife’s H-4 application is still in process on October 9 when you plan to travel, by leaving the U.S. your wife will have abandoned the Change of Status request. The only way after that date to re-enter the US would be for her to apply for the H-4 visa at a U.S consulate using your H-1B Cap approval notice (assuming we have the approval decision by that date)."
Is there any alternate, she can travel back with me on 13th November ?

Regards

[shervin143]

If your file a COS from L2 to H4 for your wife, then she should not leave the country until the COS gets approved. If she does, her COS will be denied and her stay in U.S from Oct 1st to Oct 9th will be treated as out of status on L2 (assuming your H1B becomes effective on Oct 1st). She has two options.

1) File the COS from L2 to H4 and you both travel only after both H1B and H4 gets approved.
2) Do not file the H4 COS. Let your wife leave the country before Oct 1st (When you both are on L1/L2 status and before your status changes to H1B). You can leave on Oct 9th as planned (by when you will be in H1B if approved). Upon your return, by showing your H1B approval notice at the POE (You both will need H1B /H4 visas stamped in the passport) and valid H1B/H4 visas, you will get I-94s that will put yu both on H1B/H4 accordingly.

[abhisheks77]

Thanks for reply Shervin.
Our travel to India on 9th October can not be avoided. Attorney already filed H4 COS for her, though they knew that I am being converted into premium processing. It is scaring me now that I will be converted into H1B and as soon as I am approved for H1B, my wife be out of status since she is on L2B. Am I understanding it correctly ?
From the date of my approval till 9th October, she will be out of status. Will there be any problem at airport, when she will leave US ?
Can I-539 approval (extension for her stay) save us from this problem ?

[shervin143]

Our travel to India on 9th October can not be avoided. Attorney already filed H4 COS for her, though they knew that I am being converted into premium processing. It is scaring me now that I will be converted into H1B and as soon as I am approved for H1B, my wife be out of status since she is on L2B. Am I understanding it correctly ?
>>> No. Your status will be changed to H1B only on the H1B effective date (Which will be mentioned the approval notice when the petition gets approved). I am assuming you filed your H1B under a brand new CAP and so it will be effective only on Oct 1st, unless your attorney request the effective date to be November 1st since your L1 expires on Oct 31. Until then, you both will be in L1/L2 status. If your H1B effective date is Oct 1st, the your status will change to H1B on Oct st even if the approval comes before that. Since the attorney has already filed the H4 COS for your wife, she can stay in the country based on the pending COS. But if she leaves, her COS will be denied and the period from Oct 1st to 9th will be considered as out of status period on L2.

From the date of my approval till 9th October, she will be out of status. Will there be any problem at airport, when she will leave US ?
>>> There will be no problem when she leaves U.S. If at all there is a problem, it can be when she goes for the visa interview or that the POE when she returns.

Can I-539 approval (extension for her stay) save us from this problem?
>>> Yes, as long as the approval comes before you leave U.S.

[abhisheks77]

Her COS was filed on 8/18, so she will be in same status till 9th October. So I am assuming, there would not be any problem when she (we) leave US on 9th October.
Is there any chance/alternate to get her H4 before 13th November ? I understand that timeline can not be confirmed, but just trying to get an idea of average time otherwise I will need to change my return flight date. Considering that I am in PP.
I will check for I-539 approval also with attorney.

[shervin143]

Her COS was filed on 8/18, so she will be in same status till 9th October. So I am assuming, there would not be any problem when she (we) leave US on 9th October.
>>> Like I said, no problem when she leaves U.S. It is the re-enter / visa stamping that you should worry about.

Is there any chance/alternate to get her H4 before 13th November ? I understand that timeline can not be confirmed, but just trying to get an idea of average time otherwise I will need to change my return flight date. Considering that I am in PP.
>>> I don't get it. If your wife will leave U.S on Oct 9th, then it doesn't matter whether the H4 gets approved or not. In order to re-enter U.S, your H1B approval notice and H4 visa is all that she needs. Her H4 approval is irrelevant once she leaves U.S. Her H4 COS is only important o maintain a valid H4 status from Oct 1st until Oct 9th. Like I said, if she leaves U.S before Oct 1st, you do not have to worry about any of this. You can just ignore whatever might happen to her H4 COS.

[abhisheks77]

I think, I confused you. Let me rephrase my query.
I am able to see status "H-4 Application filed. Awaiting Receipt notice" on 8/18/2015. She can use this status to stay past 1st October, till 9th October.
Our return tickets are already there for 13th November. Suppose my H1B get approve in October itself. I will go to consulate and will do stamping on my passport in India. What will she require to get stamping on her passport ?
If I am approved for H1B, will she automatically eligible for H4 and she will get stamping along with me, when I (we) will go to consulate in India ?

[shervin143]

I am able to see status "H-4 Application filed. Awaiting Receipt notice" on 8/18/2015. She can use this status to stay past 1st October, till 9th October.
>>> You don't seem to understand. She won't be in H4 status until her H4 gets approved. If your H1B effective date is Oct 1st, then she cannot be in L2 post Oct 1st. She has to be in H4. But since her H4 COS has already been filed, she is allowed to stay past Oct 1st based on the pending H4 COS. This period is called as "Period of Authorized Stay by the attorney general". If that H4 COS gets approved later, she is all good and her stay in the country from Oct 1st to Oct 9th will be valid under H4 status. If that H4 COS gets denied (it is possible it gets denied if she leaves before a decision is made on her case), then her status from Oct 1st to Oct 9th will remain to be L2 (since H4 got denied) which is invalid as your status changed to H1B on Oct 1st. So she will be considered to be out of status on L2 from Oct 1st to Oct 9th.

Our return tickets are already there for 13th November. Suppose my H1B get approve in October itself. I will go to consulate and will do stamping on my passport in India. What will she require to get stamping on her passport ?
>>> She will need your H1B approval notice. Check the H4 visa requirements below.

https://www.immihelp.com/h4-visa-stamping-documents/

If I am approved for H1B, will she automatically eligible for H4 and she will get stamping along with me, when I (we) will go to consulate in India ?
>>> Yes, both of you can apply for H1B and H4 stamping together at the U.S Consulate based on your H1B approval notice. Her H4 approval is not needed to get the H4 visa stamped.

[abhisheks77]

Alright, I understood it now.
I understand that COS may be not of use and she will use it only for staying extra 8 days after 1st October. Eventually it will be denied once she will fly to India on 9th October. Will it leave any bad mark in history ? Is it safe to go with this approach ? Do we need to explain its reason, when we will go for stamping in India at Consulate ?
I appreciate your knowledge on this.

[shervin143]

There is a question in DS160 that asks if you have ever violated the visa status and you will need to answer YES to that question if the COS ultimately gets denied. You have to mention the reason that you actually filed the COS but had to leave the country before getting a decision is made by USCIS due to whatever circumstances it might be. Then it is up to the VO to decide what to do. But since the out of status period is very less, I am assuming there will be no impact. But the bad thing is you have to answer YES to this question going forward and need to provide the reason. The easiest way to avoid this by asking your wife to leave early (before Oct 1st).

Alright, I understood it now.
I understand that COS may be not of use and she will use it only for staying extra 8 days after 1st October. Eventually it will be denied once she will fly to India on 9th October. Will it leave any bad mark in history ? Is it safe to go with this approach ? Do we need to explain its reason, when we will go for stamping in India at Consulate ?
I appreciate your knowledge on this.

[abhisheks77]

If that is considered as "violated of visa status", I think we should be able to explain it to VO. That's is only way out for us, it seems. I can not move travel dates, there are few dependencies.

[shervin143]

Like I said, it should not be a problem since the gap is very small and since you have already filed the COS before the status runs out. It is very much possible that it will get overlooked. You just need to mention that and provide explanation while filling DS160. I think it will be alright.

If that is considered as "violated of visa status", I think we should be able to explain it to VO. That's is only way out for us, it seems. I can not move travel dates, there are few dependencies.

[abhisheks77]

Thanks a lot.
You were very helpful and knowledgeable.