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Bringing spouse on H4 while her is H1 approved with COS effective Oct 1,2008

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  • Bringing spouse on H4 while her is H1 approved with COS effective Oct 1,2008

    - My fiancée is currently in USA on a L1A visa stamped on her passport valid until Sep 2009 with employer A( a big firm)

    - Employer B ( a small firm) filed for a L1 to H1B with change of status and it got selected on lottery and approved with I-797 + i-94 effective October 1 ,2008

    - She is leaving to India end of July 2008 and we are getting married in September 2008

    - I am on H1 status in the USA and I am looking at *safe* options of bringing my fiancée back with me to USA , rather than have her appear for H1 visa interview in home country ( since employer B is a small consulting firms , and USCIS is very cautious these days in approving visas for candidates who go through software consulting firm )

    - We are getting married on Sep 1 ,2008 | Appear for H1B stamping and my fiancés H4 dependent stamping together at US Consulate in India | Return back to USA around Sep 19,2008

    Questions
    =======
    o Will the verification officer know about her H1 petition and ask her why she is appearing for H4 stamping ?
    o At the port of entry , will immigration ask her why she is entering USA on H4 when she has a approved H1 petition ?
    o Assuming the H4 stamping for my fiancée is done successfully , and I bring her back on Sep 20,2008 to USA
    - What will her status on Oct 1,2008 ? H1B or H4 ?
    - What happens to her approved COS from L1 to H1 on Oct 1,2008 ?
    - Does she need to file a new COS from H4 to H1 once she comes back to USA to start working on H1 with the employer B who filed her H1 petition ?

  • #2
    Use q# for easy reply reference for members.

    No. But can find out if needed. But it isn't an issue to enter on H4 even with an approved H1b.
    No
    Since it is a COS, she should be careful and enter only after Oct 1st to avoid COS. Search leapfrog.
    Above. But it is unclear as her COS was from L1 to H1 and if she enters on H4, if the Efren Hernandez memo still applies to her. Enter after Oct 1st to avoid confusion.
    Yes if entery is after Oct 1st. Entry before Oct 1st in your situation is a gray area to me.

    I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

    Comment


    • #3
      Thanks - If she enters USA on H4 after Oct 1 , wont she lose her H1B ? Because per the last action rule of USCIS the last action taken by USCIS was approving L1 to h1 with COS - Right ?

      ======================================================
      Originally posted by txh1b
      Use q# for easy reply reference for members.

      No. But can find out if needed. But it isn't an issue to enter on H4 even with an approved H1b.
      No
      Since it is a COS, she should be careful and enter only after Oct 1st to avoid COS. Search leapfrog.
      Above. But it is unclear as her COS was from L1 to H1 and if she enters on H4, if the Efren Hernandez memo still applies to her. Enter after Oct 1st to avoid confusion.
      Yes if entery is after Oct 1st. Entry before Oct 1st in your situation is a gray area to me.

      Comment


      • #4
        H1 is not lost if one enters on a different status. H1, once approved belongs to the user for cap purposes for the next 6 years.

        I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

        Comment


        • #5
          Thanks Txh1B. So safest option is to appear for H4 stamping , have my fiancee enter USA after Oct 1,2008. Then once she is ready to start working have her employer file for a new COS from H4 to H1 , right ?

          Appreciate all your help , this forum is so useful !

          Originally posted by txh1b
          H1 is not lost if one enters on a different status. H1, once approved belongs to the user for cap purposes for the next 6 years.

          Comment


          • #6
            Yes, I agree and enter after Oct 1st.

            I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

            Comment


            • #7
              Bringing spouse on H4 while her is H1 approved with COS

              From your experience do you forsee any problems , when she files for a COS from H4 to H1 once she is in USA after Oct 1,08 and decided to go on board with her H1 employer ?

              Originally posted by txh1b
              Yes, I agree and enter after Oct 1st.

              Comment


              • #8
                It has to be an amendment or a visa stamp from Can/Mex. No issues if the job and employer are genuine.

                I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

                Comment


                • #9
                  Originally posted by txh1b
                  It has to be an amendment or a visa stamp from Can/Mex. No issues if the job and employer are genuine.
                  Thanks - Can you pls explain what is the difference between an amendment for H4 to H1 and a COS from H4 to H1?

                  Comment


                  • #10
                    Originally posted by VKRAMESH
                    Thanks - Can you pls explain what is the difference between an amendment for H4 to H1 and a COS from H4 to H1?
                    Hi Txh1b - Any idea to my question above ?

                    Comment


                    • #11
                      Originally posted by VKRAMESH
                      Hi Txh1b - Any idea to my question above ?
                      Why did you use that face ???

                      Comment


                      • #12
                        Sorry !

                        Originally posted by orion
                        Why did you use that face ???
                        Sorry Orion ! I didnt mean to offend any senior members who are actually doing such a nice service.

                        Essentially i am in a very confused state even after talking to lawyer and hence i used a confused smiley ...

                        Comment


                        • #13
                          Originally posted by txh1b
                          Yes, I agree and enter after Oct 1st.
                          Hi Seniors -
                          I talked to a attorney about my scenario

                          - My fiance has a H1B approved with COS from L1 , effective Oct 1,2008
                          - I am on H1B status since Oct 2006
                          - We are getting married on Sep 1,2008
                          - I appear for H1B stamping at US COnsulate , India | Fiance appears for H4 stamping with me

                          QUestions
                          1 ] Fiancee travels to USA on Oct 15,2008 so that she can enter USA on H4 status ( note : Last action rule of USCIS is approving her L1 to H1 COS petition ). Since she entered USA on H4 status , she continues to be on H4 status and doesnt need to work with H1 employer. Correct ?

                          Response : Yes , correct

                          2 ] On or around Feb 2008 , H1 employer files for a amendment to change her status from H4 to H1. This amendment is cap exempt , because she already holds a valid H1 petition that was counted against the cap. Correct ?

                          Response :This is a gray area and I have looked for guidance on this. I think this is a major risk because if she does not begin work on October 1, 2008, her H-1B never activates and as a result, she loses it. So she may not be cap exempt.

                          3 ] Just entering USA on H4 status on Oct 15,2008 , doesnt cancel her H1 petition. Correct ?

                          I believe that this might cancel her H-1B. Remember, she has to comply with the LCA which states that she must begin work on October 1, 2008. There is no grace period

                          While this attorney answered as above , another attorney answered similar to TXH1B in my case. I am totally confused

                          Comment

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