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  • H4 to H1B

    Hi,

    I have a question regarding H4 to H1B Change of status. My wife is on H1B and I am currently in H4 status. I have earlier worked on H1B before converting to H4 and am already CAP counted. I am looking to move back on H1B and currently pursuing job opportunities. I have the following questions

    1. My wife intends to go to India for a vacation for 3-4 weeks. Meanwhile, I intend to pursue job opportunities here and wanted to know if there will be any problem in the H4 to H1B COS processing if the petition is filed while she is out of the country. For the COS, is her I-94 and paystubs needed as part of the documentation?.

    2. If it is necessary for my wife to be in the US while my H1B is filed, does she need to be here till my H1b is filed or till the approval comes?.

    Thanks in advance.

  • #2
    Originally posted by cooldude850 View Post
    Hi,

    I have a question regarding H4 to H1B Change of status. My wife is on H1B and I am currently in H4 status. I have earlier worked on H1B before converting to H4 and am already CAP counted. I am looking to move back on H1B and currently pursuing job opportunities. I have the following questions

    1. My wife intends to go to India for a vacation for 3-4 weeks. Meanwhile, I intend to pursue job opportunities here and wanted to know if there will be any problem in the H4 to H1B COS processing if the petition is filed while she is out of the country. For the COS, is her I-94 and paystubs needed as part of the documentation?.
    Her I-94 and paystubs not needed when you are changing your status to H1. The only problem, I can see is, if your COS gets rejected, immidiately, you need to file again H4 or leave the country and in that case, her documents needed.

    2. If it is necessary for my wife to be in the US while my H1B is filed, does she need to be here till my H1b is filed or till the approval comes?.
    Not necessary

    Thanks in advance.
    [Note:- I am sharing my views, contact your attorney for the best advice]
    Last edited by milda; 04-15-2010, 10:52 AM.

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    • #3
      This is not true. If the COS gets rejected, the person remains in valid H4 status. No need to apply for H4 again.

      However, H4 depends on H1B. When H1B is out of the country, the H1B holder doesn't hold the H1B status any more. In which case, H4 goes out of status too. Make sure your spouse doesn't stay out of the country for a long time. That would cause issues for you. Shorter trips outside the country without the dependent is permitted.


      Originally posted by milda View Post
      1. My wife intends to go to India for a vacation for 3-4 weeks. Meanwhile, I intend to pursue job opportunities here and wanted to know if there will be any problem in the H4 to H1B COS processing if the petition is filed while she is out of the country. For the COS, is her I-94 and paystubs needed as part of the documentation?.
      Her I-94 and paystubs not needed when you are changing your status to H1. The only problem, I can see is, if your COS gets rejected, immidiately, you need to file again H4 or leave the country and in that case, her documents needed.
      Not a legal advice. Use of this information is strictly at your own risk.

      Comment


      • #4
        Thanks Shervin for your response.

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