travel on H4 when H1B is in process

[yrr]

Hi ,

I am in a very confused situation at the current moment regarding H1B and COS .

I am on h4 and had to travel to India on 15 April because of an emergency . I have my return tickets for the June 18
I wanted to apply for my H1B for 2013 but because of the travel emergency I decided to apply for the same once I return on June 18 . Looking at the current cap , it seems to be getting filled at a faster pace and might even be filled by the time I return

My query is :

1. Can I initiate my H1B process through my sponsoring company from India in the normal process ?
2. One of the documents that needs to be submitted is the I94 ,which I had returned when I left on April 15 , I believe I94 is required only for COS , correct me if I am wrong , would not being in the country when applying for H1B increase the chances of H1b denial.
3. Is it possible that I apply for my H1B , and assuming the file is in process , would I be able to enter on June 18 on current H4 status , and then apply for my COS with my new I94 .
4. Is H1B petition and COS applied at the same time else we can apply for the H1B first and once if the H1B is approved , we can apply for the COS
5. In case H1B and COS are applied at the same time , would I be able to enter on H4 and what are the chances of the H1B file getting rejected since I94 was submitted when I left the country


Thanks in advance

Regards
YRR

[shervin143]

1. Can I initiate my H1B process through my sponsoring company from India in the normal process ?
>>> Yes. It can be filed under normal or premium process. It can be filed only for consular process.

2. One of the documents that needs to be submitted is the I94 ,which I had returned when I left on April 15 , I believe I94 is required only for COS , correct me if I am wrong , would not being in the country when applying for H1B increase the chances of H1b denial.
>>> You cannot file the H1B as a COS when you are not in U.S. It has to be filed for consular process. The approval/denial is no different when filed as a COS or consular process.

3. Is it possible that I apply for my H1B , and assuming the file is in process , would I be able to enter on June 18 on current H4 status , and then apply for my COS with my new I94 .
>>> Possible. But the H1B petition need to get approved and then the employer can file an amendment to get a COS. You cannot work until the petition gets approved as a COS (with a new I-94).

4. Is H1B petition and COS applied at the same time else we can apply for the H1B first and once if the H1B is approved , we can apply for the COS
>>> You can apply for H1B as a consular process now since you are outside U.S. When the petition gets approved, when you are inside U.S, the employer can file a new petition (using the CAP from the already approved H1B petition) as a COS from H4 to H1B. You cannot work until the COS gets approved.

5. In case H1B and COS are applied at the same time , would I be able to enter on H4 and what are the chances of the H1B file getting rejected since I94 was submitted when I left the country
>>> You cannot apply the H1B as a COS. COS means change of status. When you are outside U.S, you are not in any valid non-immigrant status. So a COS is not possible.

[gujji]

Travelling out of US on H4 afting filing H1b

I had been staying in US on H4 and had applied for H1B on April 1st.

After the application,before the lotttery results were out i had to travel to India.

I travelled to india on April 12th.My petition has been picked in lottery with the receipt date as April 13th.I would be travelling back to US on H4 before my application would be approved.

After approval am planning to do COS to H1

My question is,



1.Since my petition receipt date was after my Travel Date,will i still be able to apply for COS to H1 after the approval or will it go for consular processing?

2.After i travel back to US while petition goes to RFE,to avoid cos abandoning,will it be possible to submit my new i94 ?

3.How are the chances for Stamping in India and COS in US?



Any legal advice is appreciated.Thanks in Advance

[raghvi]

I had been staying in US on H4 and had applied for H1B on April 1st.

After the application,before the lotttery results were out i had to travel to India.

I travelled to india on April 12th.My petition has been picked in lottery with the receipt date as April 13th.I would be travelling back to US on H4 before my application would be approved.

After approval am planning to do COS to H1

My question is,



1.Since my petition receipt date was after my Travel Date,will i still be able to apply for COS to H1 after the approval or will it go for consular processing?

2.After i travel back to US while petition goes to RFE,to avoid cos abandoning,will it be possible to submit my new i94 ?

3.How are the chances for Stamping in India and COS in US?



Any legal advice is appreciated.Thanks in Advance

Assuming your original H1 was filed as COS, then as you traveled before COS approval, the COS is deemed abandoned hence the need for another COS after you return (provided H1 is approved).
1. It would depend upon USCIS, generally COS to consular and subsequently consular to COS again needs valid justification.
2. No.
3. Depends upon the strength of documentation, number of layers, profile of the employer.

This is my opinion not legal advice.

[gujji]

Thanks raghvi.
in the uscis cos description I see the below
"If you want to change your status to one of the following
employment-based nonimmigrant categories, your prospective
employer should file a Form I-129, Petition for a
Nonimmigrant Worker, before your Form I-94 expires."

In my case,my petition has been filed on April 1st,I travelled to india on April 12th, my h1b receipt date is April 13th.

in case if the h1b is approved(with abandoned cos),after I return back to us will I be eligible to apply for cos?

[raghvi]

Thanks raghvi.
in the uscis cos description I see the below
"If you want to change your status to one of the following
employment-based nonimmigrant categories, your prospective
employer should file a Form I-129, Petition for a
Nonimmigrant Worker, before your Form I-94 expires."

In my case,my petition has been filed on April 1st,I travelled to india on April 12th, my h1b receipt date is April 13th.

in case if the h1b is approved(with abandoned cos),after I return back to us will I be eligible to apply for cos?

That is true but you traveled before decision on COS was taken : http://www.uscis.gov/sites/default/f...se/Travpub.pdf

" an alien on whose behalf a change of nonimmigrant status has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the request for a change of nonimmigrant status. This has been, and remains, the Service’s long-standing policy "

Once you re enter on H4 , yes you are eligible for a COS for an already approved H1, but granting that COS depends on USCIS.

This is my opinion not legal advice.

[gujji]

Thanks raghvi for your advice.