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Mistakenly got H1B instead of H4. Can I apply for change while in the US?

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  • Mistakenly got H1B instead of H4. Can I apply for change while in the US?


    Hope you are doing well, and hope you can help me with this:

    I’m on H1B, got the visa in 2014. Soon after my wife who was on F1 initially, travelled back to our home country Venezuela to get her new H4 visa. The problem: she applied for the H4 visa but got an H1B visa instead. She didn’t spot the problem and travelled back to the US.

    She didn’t any problems when going through immigration the first time, all the immigration officer did was to input a note into the system saying that the US embassy made a mistake in Venezuela. After that, my wife has travelled abroad and come back to the US a couple more times. No big issue, though the last time (late 2015) she was advised by the immigration officer at the airport to go back to Venezuela as soon as possible and correct the issue at the US embassy there.

    We wanted to do just that earlier this year (2016) but she got pregnant and now we are afraid she goes back to Venezuela because of the Zika virus problem. We wanted to wait for after delivering the baby to travel back home and fix the issue. However, I’m currently trying to move to a new employer, and the company is asking me to fix this issue before they apply for my H1B transfer.

    My questions, and hope you can help me with this:

    • Can I apply for the Visa correction in the US, without traveling abroad? Maybe by filing an I-539 form?
    • Her I-94 currently says H1B status. Can the government consider she has been out of status at any time? I need to highlight here that she has been out and into the country three times already with no trouble.
    • Can the USCIS see this as a major problem and ask my wife to leave the country immediately?

    Many thanks in advance,