H4 to H1B

[enkpro]

Hi,

My wife came to US last year on H4 and I am planning to apply H1B for her this year. I have a question. If her H1b approved this year then will her status automatically changes to H1B after October 2012? What happens if she does not wants to do job after October? Can she just stay without out joining in the company or does she needs to change her status back to H4(If her status changes automatically). Any response is greatly appreciated.

Thanks,

[shervin143]

It totally depends opn how the H1B is filed. If the H1B gets filed as a COS from H4, then upon approval, the H1B will come with a new I-94. As of the H1B I-94 effective date, her status will change to H1B and she should be working and getting paid as of the effective date to maintain her H1B status. Otherweise she will go out of status on H1B. In this case, if she doesn;'t want to work, then she should either efile a COS back to H4 immediately or leave the country and return back in H4 visa.

On the other hand, the employer can file the H1B for consulare process. The approval will not ocme with a new I-94. She will remain to be in H4 status. Whenever she is ready to work for the employer, she will have to leave the country, get the H1B visa stamped and return back in H1B visa. Thsi way, she will get an I-94 associated with H1B at the POE which will put her in H1B status allowing her to work for the employer.

Hi,

My wife came to US last year on H4 and I am planning to apply H1B for her this year. I have a question. If her H1b approved this year then will her status automatically changes to H1B after October 2012? What happens if she does not wants to do job after October? Can she just stay without out joining in the company or does she needs to change her status back to H4(If her status changes automatically). Any response is greatly appreciated.

Thanks,

[enkpro]

It totally depends opn how the H1B is filed. If the H1B gets filed as a COS from H4, then upon approval, the H1B will come with a new I-94. As of the H1B I-94 effective date, her status will change to H1B and she should be working and getting paid as of the effective date to maintain her H1B status. Otherweise she will go out of status on H1B. In this case, if she doesn;'t want to work, then she should either efile a COS back to H4 immediately or leave the country and return back in H4 visa.

On the other hand, the employer can file the H1B for consulare process. The approval will not ocme with a new I-94. She will remain to be in H4 status. Whenever she is ready to work for the employer, she will have to leave the country, get the H1B visa stamped and return back in H1B visa. Thsi way, she will get an I-94 associated with H1B at the POE which will put her in H1B status allowing her to work for the employer.

Thanks Shervin for the quick reply.
If employer file the H1B for consulare process, Does she need to go back to home country for stamping or can she go to canada or Mexico for stamping?
Onemore thing is my H1b is going to expire by sept 2012 and my employer is planning to file extension this month(both my h1b and my wife's h4). If I apply H1B for my wife now will that be a problem?

[shervin143]

If employer file the H1B for consulare process, Does she need to go back to home country for stamping or can she go to canada or Mexico for stamping?
>>> If this is her first H1B, then she need to get it stamped from her home country. If not, then she can go to Canada, but not to Mexico. Change of status stamping is not allowed in Mexico.

Onemore thing is my H1b is going to expire by sept 2012 and my employer is planning to file extension this month(both my h1b and my wife's h4). If I apply H1B for my wife now will that be a problem?
>>> It can become a problem if the H1B for your wife is filed for change of status. It won't be a problem if it is filed for Consular process. Search and read about the last action rule.