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H1B FY17 CP in process but H4 valid to travel to US (First time travel to USA)

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  • H1B FY17 CP in process but H4 valid to travel to US (First time travel to USA)

    Hello All,

    Scenario :
    I am currently working in USA in H1B visa. My spouse and kids are in India, (never traveled to USA yet), with valid H4 visa stamped. She was successful in finding a sponsor who could file her H1B visa (Consular Processing) in FY17 cap, and her petition got picked up in lottery but not approved yet. Later she converted her case to premium on Dec 1, 2016. She received RFE on her petition on Dec 15, 2016 and currently her sponsor is yet to respond to RFE. But positively they will submit RFE response by end of February 2017.

    Questions :
    1. After her H1B is approved while being outside USA, Can she travel to USA using her valid H4 visa stamped in her passport and then apply change of status from H4 to H1B before starts her work in USA ?
    (OR)
    2. Can she travel to USA with her valid H4 stamped visa while her H1B (CP) is in process, and then file Change of Status while in USA once her H1B is approved ?

    Please suggest which of the above 2 options is legally acceptable to travel to USA. She do not have an I94 yet.

    Thanks

    Anand S
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