I have valid I-94 for Both H4 and H1 petitions - URGENT

[sreenivasamaram]

My husband was working on L1 and I was in L2(EAD). After that my husband employer applied H1B and H4 to us and both got approved (Received valid I-94).

Later I had applied H1B with another employer and it's approved (Received Valid I-94). But I never worked on H1B due to my pregnancy and new born baby. So I end up with two valid I-94s .Now my employer wanted to terminate my H1B due to job market.

Note: My H4 approved (04/2008) earlier than my H1B(06/2008) and I don't have any valid visas.

So I have following questions?.

1. What status (H1/H4) do I have now?
2. Should I apply the H4 again with my Husband employer, if my H1B employer terminate my HB petition?
4. Can I get the H4 stamp, if I leave and comeback to USA with old H4 status?

Can you please answer to my questions ASAP

Thank you so much.

[shervin143]

1. What status (H1/H4) do I have now?
>>> You are out of status on H1B.

2. Should I apply the H4 again with my Husband employer, if my H1B employer terminate my HB petition?
>>> COS to H4 is not possible when you are out of status. You will need to provide latest pay slips to prove that you actually maintained the H1B status so far.

4. Can I get the H4 stamp, if I leave and comeback to USA with old H4 status?
>>> You can do that.

[sreenivasamaram]

Thank you so much shervin. I couldn't understand 'You are out of status on H1B' .
Because my employer is saying 'we haven't run any pay checks for you and you didn't work for even one day under my company. So you are not under H1B. So your current status is on H4'. Is it true?

Also I have couple of questions?

1. If my employer terminate the H1B, then still I am in 'Out of status' or automatically convert to H4.
2. If it is out of status, how long can I stay in US.
3. Can I go to Canada for H1 stamping? does it cause any issues?
4. If I get a job and my employer run the paycheck now onwards, can I be in valid H1B status?
5. Can you please let us know which one be the best option.

Thank you very much for your quick reply..

[shervin143]

Thank you so much shervin. I couldn't understand 'You are out of status on H1B' .
Because my employer is saying 'we haven't run any pay checks for you and you didn't work for even one day under my company. So you are not under H1B. So your current status is on H4'. Is it true?

>>> That is not true. When you status changes to H1B, you need to be working and get paid. If not, you should have converted your status back to H4. Status doesn't automatically change if your don't work. Go through the below link when you have time.

https://www.immihelp.com/h1-visa-holder-rights/

https://www.immihelp.com/h1-visa-holder-responsibilities/

https://www.immihelp.com/h1b-visa-employer-violations-complaint-procedure/

Also I have couple of questions?

1. If my employer terminate the H1B, then still I am in 'Out of status' or automatically convert to H4.
>>> There is no automatic conversion. You will remain Out of Status until you get the status changed to H4. Accumulating a lot of out of status period will cause issues in future.

2. If it is out of status, how long can I stay in US.
>>> There is no such thing. You cannot be out of status. If you are out of status, it will cause you issues on your future petitions and visas.

3. Can I go to Canada for H1 stamping? does it cause any issues?
>>> What H1B stamping? You don't even work for this employer? Did you check the H1B visa requirements in the "Visas" section? You need the client letter, latest pay slips etc?

4. If I get a job and my employer run the paycheck now onwards, can I be in valid H1B status?
>>> Yes. But the W2 for the period you didn't work will show your wages less than the one in your LCA. This will cause issues in future (Stamping, extensions).

5. Can you please let us know which one be the best option.
>>> Change of status is not possible within the country. Getting visa stamping from third nations like Canada/Mexico is risky. You will need to travel to your home country and try and get the H4 stamped and return back.

[sreenivasamaram]

Thank you very much for your time. I have two more questions. Can you please answer?

1. Can I go to Canada/Mexico for H4 stamping along with my husband? (My husband wanted to go for H1B stamping) If yes, does it cause any risk for my husband.

2. What will be happened, if I applied H4 again through my husband employer by?
Not providing any pay slips (By saying I couldn't work due to Pregnant
And New born baby).

3. Can I ask my employer to hold my H1B until I leave the USA?

4. Does USCIS can track my status if I stay longer here without getting new H4?

Thanks,

[shervin143]

1. Can I go to Canada/Mexico for H4 stamping along with my husband? (My husband wanted to go for H1B stamping) If yes, does it cause any risk for my husband.
>>> Not advisable when you are out of status. Check this.
https://www.immihelp.com/usa-visas/v...gcanadamexico/

2. What will be happened, if I applied H4 again through my husband employer by? Not providing any pay slips (By saying I couldn't work due to Pregnant
And New born baby).
>>> H4 has nothing to do with any Company. Your husband's employer doesn't need to apply for COS. You can do it yourself. However, the chances of an RFE is pretty high since you are out of status. USCIS won't care about the reason's that you provide. They would ask why you didn't change the status to H4 in that case (Pregnancy, child care etc).

3. Can I ask my employer to hold my H1B until I leave the USA?
>>> You can. But how is it going to help you? If they keeps holding your H1B without paying you salary, then they are in deep trouble too (If you complain to DOL).

4. Does USCIS can track my status if I stay longer here without getting new H4?
>>> Of course.

[sreenivasamaram]

I would like to send my sincere thanks for your information.

Actually My H1B and H4 were applied in the same time. H1B is applied in May-1-2008 and H4 is April-17-2008 and

Here are the approval dates

H4 Approval - April 23 3008 and I-94 Valid is : 10/01/2008 to 09/07/2011
H1 Approval - June 6 3008 and I-94 Valid is : 10/01/2008 to 03/24/2011

Valid start date are same for both visas even though approval dates are different and I never worked on H1B.

1. So how can we say I am on H1B?
2. My employer spoke with his lawyer and he is strongly saying 'She is in H4, because we never run any pay check for her? and she had Valid H4. So please give your advice about this.

Thanks,

[shervin143]

Read about the last action rule in the forum. You status changes to whichever I-94 you received last. In your case, your H1B approval notice came last with an attached I-94. So your status is H1B starting 10/01/2008 (This one overrides your H4 I-94).

Your employer and his lawyer are wrong. It doesn't mean that your status will automatically change to H4 if they don't generate pay slips. You should consult a good immigration attorney if you have any further doubts about this. In case you are still not convinced, I will let the other forum members reply.