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  • H4 to H1 complications

    Hi Experts,

    I request your kind help to find the answer of my questions below.
    It will be really helpfull to understand the options and complications.
    Thanks much for your support.

    I am in H1 and have a valid I797/I94 till 1/9/2017. My H1 extension is filed with USCIS just today 11/14/2016.
    My spouse is in H4 now with a valid I94 till 1/9/2017. I have also applied for her H4 extension along with my H1 extension today (11/14/2016).
    My spouse has accepted a job offer on July 2016 and her prospective employer has applied for her cap-exempt H1 with COS on 9/20/2016 (She was on H1 before). The application is under process now with USCIS.
    Just wanted to know about various scenarios and be prepared beforehand.

    1. If she joins her job once her H1 COS is approved (say in February 2017), and then her H4 gets approved along with my H1 (Say in May 2017), does she have to quit? Or can her employer apply for another COS (I129 and I539) immediately and she can continue (may be with a couple of weeks of break)?
    2. If her H1 COS gets approved on February 2017, but she is unable to join because of some reason, what will be her status? Will she be considered on H4?
    3. Related to question 2 above, if she will not be considered in H4, can we apply for another COS (I539) so that her status changes to H4 again? But by that time, my H1 extension is not approved. Can we apply for a COS to H4 when the primary applicant's H1 extension is under process?
    4. If her H1 COS gets approved on February 2017 and she does not join, and we dont take any further steps, and then my H1 and her H4 gets approved in May 2017, will she be in H4 status from May 2017? Will she be considered out of status in the 3 months in between (February to May)? What are the complications of that?

    Best Regards.

  • #2
    Originally posted by debu.ju View Post
    Hi Experts,

    I request your kind help to find the answer of my questions below.
    It will be really helpfull to understand the options and complications.
    Thanks much for your support.

    I am in H1 and have a valid I797/I94 till 1/9/2017. My H1 extension is filed with USCIS just today 11/14/2016.
    My spouse is in H4 now with a valid I94 till 1/9/2017. I have also applied for her H4 extension along with my H1 extension today (11/14/2016).
    My spouse has accepted a job offer on July 2016 and her prospective employer has applied for her cap-exempt H1 with COS on 9/20/2016 (She was on H1 before). The application is under process now with USCIS.
    Just wanted to know about various scenarios and be prepared beforehand.

    1. If she joins her job once her H1 COS is approved (say in February 2017), and then her H4 gets approved along with my H1 (Say in May 2017), does she have to quit? Or can her employer apply for another COS (I129 and I539) immediately and she can continue (may be with a couple of weeks of break)?
    2. If her H1 COS gets approved on February 2017, but she is unable to join because of some reason, what will be her status? Will she be considered on H4?
    3. Related to question 2 above, if she will not be considered in H4, can we apply for another COS (I539) so that her status changes to H4 again? But by that time, my H1 extension is not approved. Can we apply for a COS to H4 when the primary applicant's H1 extension is under process?
    4. If her H1 COS gets approved on February 2017 and she does not join, and we dont take any further steps, and then my H1 and her H4 gets approved in May 2017, will she be in H4 status from May 2017? Will she be considered out of status in the 3 months in between (February to May)? What are the complications of that?

    Best Regards.
    1. As per last action rule she should stop working and would be on H4.
    2. She must work and get paid while on H1.
    3. Why complicate an already complicated situation by filing another H1 to H4 COS? If she has no intention to work she would be better off asking employer to cancel the COS.
    4. Yes she will be out of status.

    By having both H4 to H1 COS and H4 extension running simultaneously, you are risking goign out of status and eventually will need to leave US and re enter on a valid visa to get back in status.
    This is my opinion not legal advice.

    Comment


    • #3
      Originally posted by debu.ju View Post
      Hi Experts,

      I request your kind help to find the answer of my questions below.
      It will be really helpfull to understand the options and complications.
      Thanks much for your support.

      I am in H1 and have a valid I797/I94 till 1/9/2017. My H1 extension is filed with USCIS just today 11/14/2016.
      My spouse is in H4 now with a valid I94 till 1/9/2017. I have also applied for her H4 extension along with my H1 extension today (11/14/2016).
      My spouse has accepted a job offer on July 2016 and her prospective employer has applied for her cap-exempt H1 with COS on 9/20/2016 (She was on H1 before). The application is under process now with USCIS.
      Just wanted to know about various scenarios and be prepared beforehand.

      1. If she joins her job once her H1 COS is approved (say in February 2017), and then her H4 gets approved along with my H1 (Say in May 2017), does she have to quit? Or can her employer apply for another COS (I129 and I539) immediately and she can continue (may be with a couple of weeks of break)?
      2. If her H1 COS gets approved on February 2017, but she is unable to join because of some reason, what will be her status? Will she be considered on H4?
      3. Related to question 2 above, if she will not be considered in H4, can we apply for another COS (I539) so that her status changes to H4 again? But by that time, my H1 extension is not approved. Can we apply for a COS to H4 when the primary applicant's H1 extension is under process?
      4. If her H1 COS gets approved on February 2017 and she does not join, and we dont take any further steps, and then my H1 and her H4 gets approved in May 2017, will she be in H4 status from May 2017? Will she be considered out of status in the 3 months in between (February to May)? What are the complications of that?

      Best Regards.
      Your best option is to expedite your wife's cap exempt petition under premium processing. At the same time withdraw her H4 extension. You will only complicate matters by having two petitions running parallely.

      Comment

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