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Travelling to India while H1B petition is in process

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  • Travelling to India while H1B petition is in process

    Hi,

    I am an H1B holder and my wife holds an H4 visa and is a dependent of me. She filed her H1B petition this year and it got picked up in the lottery. Now, we have a situation where we need to travel to India for 10 days in July 2017. Could you please let me know whether it is allowed or will there be any issue if she travels while the H1B petition is in process?

    What are the the things that we need to get prepared with?

    Thanks,
    Geo

  • #2
    Originally posted by geoval View Post
    Hi,

    I am an H1B holder and my wife holds an H4 visa and is a dependent of me. She filed her H1B petition this year and it got picked up in the lottery. Now, we have a situation where we need to travel to India for 10 days in July 2017. Could you please let me know whether it is allowed or will there be any issue if she travels while the H1B petition is in process?

    What are the the things that we need to get prepared with?

    Thanks,
    Geo
    Was H1 filed as COS or as Consular process?

    Comment


    • #3
      Originally posted by raghvi View Post
      Was H1 filed as COS or as Consular process?
      Hi Raghvi,

      Sorry I dont know what does COS or a Consular process mean. Could you please explain?

      Thanks

      Comment


      • #4
        Originally posted by geoval View Post
        Hi Raghvi,

        Sorry I dont know what does COS or a Consular process mean. Could you please explain?

        Thanks
        If you are already in the US with a different status (e.g., F1 or H4, etc.) you can apply for H1 via COS (change of status) i.e., you would be issued a new I94 and you need not leave the country. Your status will automatically change to H1 from the specified date. On the otherhand you could opt for consular processing i.e., your H1 will not come with a new I94. Instead you will have to visit a consulate, get a H1 visa stamped in your passport and enter the country with the same to be able to be in H1 status.

        The probable reason for Raghvi's question is: If your H1 petition was filed as COS, and at it's time of issue you are out of the country viz., have no status, then USCIS will have no status for you to change and hence your COS petition will be rejected and you would have to do consular processing. Also, you might be rejected entry, if your previous status visa has expired.
        Just an opinion; Not legal advice.

        Comment


        • #5
          Originally posted by scientist2016 View Post
          If you are already in the US with a different status (e.g., F1 or H4, etc.) you can apply for H1 via COS (change of status) i.e., you would be issued a new I94 and you need not leave the country. Your status will automatically change to H1 from the specified date. On the otherhand you could opt for consular processing i.e., your H1 will not come with a new I94. Instead you will have to visit a consulate, get a H1 visa stamped in your passport and enter the country with the same to be able to be in H1 status.

          The probable reason for Raghvi's question is: If your H1 petition was filed as COS, and at it's time of issue you are out of the country viz., have no status, then USCIS will have no status for you to change and hence your COS petition will be rejected and you would have to do consular processing. Also, you might be rejected entry, if your previous status visa has expired.
          Hi,

          Thanks for your reply. What I know is, currently she is in US in H4 and it is valid till 2019. Now, I am pretty sure that, if the H1 petition which is applied in Apr 2017 quota will surely come with the I94 if her case is approved. Given this situation, I could think of 3 situations and want to know what I should do.

          1. By the time of 10 days when we go and come back to US, if the new H1B approval has not arrived, she can come back in H4 as it is valid till 2019. And, even if no RFE is requested specific to mismatch in I94 before approval, then I think we are good. Correct me if I am wrong?
          2. By the time we come back to US, if the new H1B approval has not arrived, and if RFE is requested before approval, for mismatch in I94 what should we do and what are the approval odds?
          3. By the time we come in if the approval has come what is the impact? Will she be stopped at the port of entry? Or after she enters US with H4, do we have to apply for change of status or an amendment?

          Could you please let me know your opinion on the above scenarios?

          Thanks,
          Geo

          Comment


          • #6
            Originally posted by geoval View Post
            Hi,

            Thanks for your reply. What I know is, currently she is in US in H4 and it is valid till 2019. Now, I am pretty sure that, if the H1 petition which is applied in Apr 2017 quota will surely come with the I94 if her case is approved. Given this situation, I could think of 3 situations and want to know what I should do.

            1. By the time of 10 days when we go and come back to US, if the new H1B approval has not arrived, she can come back in H4 as it is valid till 2019. And, even if no RFE is requested specific to mismatch in I94 before approval, then I think we are good. Correct me if I am wrong?
            2. By the time we come back to US, if the new H1B approval has not arrived, and if RFE is requested before approval, for mismatch in I94 what should we do and what are the approval odds?
            3. By the time we come in if the approval has come what is the impact? Will she be stopped at the port of entry? Or after she enters US with H4, do we have to apply for change of status or an amendment?

            Could you please let me know your opinion on the above scenarios?

            Thanks,
            Geo
            1. Not necessarily. USCIS may unilaterally approve the H1 petition but deny the COS stating that she had traveled outside US while the petition was still pending.
            2. You can only send the latest I-94 that you have and request for COS approval.
            3. No, she will be entering on H4 visa so dont see an issue. If H1 is approved, her H1 would only be activated on 01-Oct-2017.

            This is my opinion not legal advice.

            Comment

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