H4 to H1 and want to continue H4--- problem? PLEASE HELP!

[akskap]

My wife's H1B change of status application was approved with start date October 01, 2008 with company A. She is currently on H4 status with validity until 2010 (on her current I-797). Her new I-797 with company A shows validity until 2011

Now, she does not want to join company A as the company has expressed their inability to place her in any projects and asking her to take a leave of absence.

I will appreciate if members can please provide their valuable inputs:

1) Because her H1B status is approved from October 01, 2008 through company A, does this imply that she ABSOLUTELY HAS to be on H1 and join company A?

2) Can she continue on her current H4 status after October 01, 2008 without doing any paperwork? I was told that because she will not join company A on Oct 1, 2008 (i.e. do not get on their payroll or sign any offer letter) her change of status will not kick in and she can continue on H4

Please provide your valuable inputs.

Regards,
Raj

[txh1b]

This isn't new stuff. Look around the forum. There is 1 post every day on this probably.

http://www.immihelp.com/forum/showthread.php?t=49272

[akskap]

Thank you for your feedback.

My HR spoke to our company attorney and according to him, if my wife does not join comapny A on Oct 1st (even tough she has a COS approved for H1 from Oct 1) then according to him the COS did not happen and she continues on her current H4 status.

According to our company attorney, the fact that she did not join compay A (i.e. did not accept the offer and did not get on their payroll), does not change her status from H4 to H1B.

Please help. I am getting mixed answers.

Thanks
Raj

[txh1b]

My HR spoke to our company attorney and according to him, if my wife does not join comapny A on Oct 1st (even tough she has a COS approved for H1 from Oct 1) then according to him the COS did not happen and she continues on her current H4 status.

This is clear bullshit. Tell the company not to play around with your immigration status. A COS is a COS!!!! No exceptions like applying for SSN will only trigger COS, joining the job only will trigger COS. Tell them to give their stories to someone in kindercare.

There are no mixed answers here. Period!

[akskap]

Thank you for your valuable input. I will talk to my attorney personally tomorrow and initiate a change of status application so that her H1B is changed to H4

Can you also please be kind enough to answer these questions?

1) If she applies for change of status this week, and if the application is received by USCIS next week before Oct 1st and if they issue notice date of Say Oct 4 for her application - is she considered out of status? Is there any risk? as she will not have a paystub?

2) Once she files for change of status, what status will she be on from October 01?

3) I noticed currently VERMONT is processing OCT 2007 applications, is it true that this COS will take a year to get approved? If so, do they have Premium processing? I only ask that because we were planning to go to India in March

Thank you again

Raj

[txh1b]

1. It should not be a COS now. It should be an application to extend her H4 stay as she has not and does not intend to be on H1b now.

2. If she gets #1 in to USCIS before Oct 1st, she can remain on H4 as a pending extension of stay applicant.

3. Irrelevant to your case.

[akskap]

THANK YOU! One last clarification. understand now from your valualbe inputs that I have to file for extension of stay vs. change of status, which is form I-539

I checked VERMONT and for this type of application, they are currently processing OCT 2007 application. It is true that it will take 1 year for her H4 extension to get approved?

We plan to visit family early next year, so there anything we can do? Premium Processing?

Sorry to bother you but my company lawyer does not seem to bother or give me any good and correct answers.

Raj

[txh1b]

Ptrocessing time on USCIS website is not always accurate. You could ask other users as to how long it took for EOS requests. It should not take so long in most cases. Count 2-6 months for it. Before I forget, get rid of those corporate lawyers that count an immmigant as a file #.

[akskap]

THANK YOU! THANK YOU!

By the way, if you work for a law form or if you are an attorney who offer paid consulting for immigrants for immigration issues, please be sure to send me a note with contact details. I will really be interested in consultation.

Regards,
Raj

[txh1b]

No, I am just a layperson and offer my 2 cents free. Enjoy while it lasts and before I get my law degree :-) Just kidding!