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H4 visa holder with Pending H1B Application: SHould I travel to India?

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  • H4 visa holder with Pending H1B Application: SHould I travel to India?

    Currently I am on H4 visa in USA with expiry of June 30, 2012. My spouse has applied for his new H1B from July 1st onwards till October 2014. The petition was received by USCIS on May 25th under premium processing. My spouse H1 and my H4 extension application both were applied together.

    I also have a Cap subject, Regular H1 B petition pending with USCIS through a Consultant, ( my first time ever H1 B petition to start work from October 1st 2012 under the 2013 quota). this h1b application was received by USCIS on Friday May 25th as well and not under premium processing.

    I desire to travel to India to meet family and return by July end. Please advise of the possible scenarios and things to be kept in mind.

    - Can I travel after my H4 extension is approved and H1 B application is still pending? If yes, what if my H1B application gets approved in the meantime while I am in India? Will they send the H1 B approval notice with a new I 94 attached with it?

    - If I leave for India after I applied for H1B while in USA on H4 status: can the H1 B application get rejected because I went out of USA ? Should I have applied for consular processing. However I plan to return to USA by July end itself on H4 extension stamp visa.

    - Will I have a problem in US consulate for stamping of extended H4 visa, while I have my own pending H1 B application pending/ approved with USCIS - for work beginning from October 1st.

    - Assuming I get the H1 B visa approved, will I need to get the H1B stamped before I start work? This question is in the background of the fact that I travelled to India and back to USA while I applied for H1B while in USA and not applied for consular processing?

    What is safest option in this condition? Shall I get my H1B under premium processing now and travel after getting both the 2013 H1B and extension of H4 approval?

    I plan to come back on H4 visa and then apply for change of status to H1B, approx 2-3 weeks before October 1st ?

  • #2
    It is never advisable to leave the country when extension and/or change of status is pending with USCIS. There are plenty of posts that explains why it is not a good idea. If you leave the country technically the COS should get denied. If it get approved, then you will never know for sure if the status changed on Oct 1st since you violated the pending COS by leaving the country in between. It will create all sort of status issues. If you had to leave, then the best option is to return back only after Oct 1st on a valid H1B visa and start working or return back after Oct 1st in H4 visa and be a dependent.

    There will be no issue at the consulate in getting your H4 stamped when H1B is pending.
    Not a legal advice. Use of this information is strictly at your own risk.

    Comment


    • #3
      Pending H1 B 2013 application without accompanying COS petition & Travel to India

      Originally posted by shervin143 View Post
      It is never advisable to leave the country when extension and/or change of status is pending with USCIS. There are plenty of posts that explains why it is not a good idea. If you leave the country technically the COS should get denied. If it get approved, then you will never know for sure if the status changed on Oct 1st since you violated the pending COS by leaving the country in between. It will create all sort of status issues. If you had to leave, then the best option is to return back only after Oct 1st on a valid H1B visa and start working or return back after Oct 1st in H4 visa and be a dependent.

      There will be no issue at the consulate in getting your H4 stamped when H1B is pending.
      Thanks Sherwin for your kind and prompt reply.

      The difference in my case is that my H1 B is done without any accompanying COS request for now. The employer and lawyer said they will file COS after I return from India. I plan to return by July end. and H1 B will be effective from Oct 1st onwards. So will it be OK if we apply for COS after I return from India after July 2012 ?

      Option 2: Whether it will benefit to Premium Process my H1 B, so that we do not have pending H1 B application while I travel to India and come back on H 4 by July 2012.

      Thanks again for the reply.

      Comment


      • #4
        I did not get you. Is the employer filing the H1B as a Change of Status or for Consular process? If they are filing it for CP, then no issues.
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment


        • #5
          Currently on H4. Got the H1B receipt number for 2013 app. Want to time the India trip

          Originally posted by shervin143 View Post
          I did not get you. Is the employer filing the H1B as a Change of Status or for Consular process? If they are filing it for CP, then no issues.
          Update: Now I have received the H4 extension approval till Oct 2014. Also the desi IT consultant employer has applied for my First time ever H1B via COS under 2013 quota (with effective starting date of Oct 1, ’12 and for 3 years duration mentioned on company’s appointment letter for internal project) . We have got the receipt number for same (EAC#).

          We are planning to upgrade it to premium process the h1B petition to avoid the risks of abandoning H1b COS and travel to India after the H1B approval is done. And return on H4 in July-August itself .

          Question # 1
          I gather that when I come back in July/August 2012 on H4 , I will get a new I-94 at POE. Will this I-94 have the date of my H4 expiry which is Oct 2014 ? How shall I answer if the IO at POE asks that I also have an approved I-94 from my approved H1B petition ? Is it Must for me to show him both the H4 stamp w/h4 approval AND the I-94 from the 2013 H1B approval with effective date from Oct 1st ?

          #2: Will I have to apply for COS again after coming back from India OR the H1B status will automatically kick in from Oct 1st ?

          #3: In order to avoid any risks of RFE while we upgrade to Premium process, what more documents we should ensure are included in the file? The employer has already applied with company’s Appointment letter with employment terms for an internal project for 3 years duration. How should the company show that it is indeed a 3 year project ? (as it seems USCIS is asking more of evidence now than simply the statements from petitioner or the end client) ?

          #4 If I move while the application is under premium processing, the USCIS Status Page says that I have to let them know of new address. With change in my State due to the move, will it have any bearing on the Success/ RFE / Denial of my application ? The petition location for the project is NY and the new address is in New England area.

          - Is this considered a material change and can it become grounds for denial ?
          - Is it necessary to update the address change as soon it happens? or we can update it later after the Decision is made on application ?

          Thanks in advance. Your help is greatly appreciated.

          Comment


          • #6
            I gather that when I come back in July/August 2012 on H4 , I will get a new I-94 at POE. Will this I-94 have the date of my H4 expiry which is Oct 2014 ? How shall I answer if the IO at POE asks that I also have an approved I-94 from my approved H1B petition ? Is it Must for me to show him both the H4 stamp w/h4 approval AND the I-94 from the 2013 H1B approval with effective date from Oct 1st ?
            >>> What you are trying to do will mess up thing. When you leave U.S, you are suppose to return all the I-94s including the one that comes with your H1B and H4 approval. If you return back in H4 visa, you will get a new I-94 matching your H4 approval. In case, your status automatically changes to H1B as of Oct 1st, you will not have a valid I-94 associated to H1B. Also, you wouldn't be 100% sure whether you are in H1B or H4 status as of Oct 1st since you left the country inbetween. If you had to leave, then return back only after Oct 1st. If you return back after Oct 1st in H4 visa, you cannot work. If you return in H1B visa, you should be working and getting paid.

            #2: Will I have to apply for COS again after coming back from India OR the H1B status will automatically kick in from Oct 1st ?
            >>> Read the above answer.

            #3: In order to avoid any risks of RFE while we upgrade to Premium process, what more documents we should ensure are included in the file? The employer has already applied with company’s Appointment letter with employment terms for an internal project for 3 years duration. How should the company show that it is indeed a 3 year project ? (as it seems USCIS is asking more of evidence now than simply the statements from petitioner or the end client) ?
            >>> The attorney would know what documents to attach. A detailed project document including the number of people who will be working and clear project projection and time lines will need to be submitted.

            #4 If I move while the application is under premium processing, the USCIS Status Page says that I have to let them know of new address. With change in my State due to the move, will it have any bearing on the Success/ RFE / Denial of my application ? The petition location for the project is NY and the new address is in New England area.
            >>> A new LCA need to be filed first and then the H1B need to be amended for the new location.
            Not a legal advice. Use of this information is strictly at your own risk.

            Comment


            • #7
              Originally posted by shervin143 View Post
              I gather that when I come back in July/August 2012 on H4 , I will get a new I-94 at POE. Will this I-94 have the date of my H4 expiry which is Oct 2014 ? How shall I answer if the IO at POE asks that I also have an approved I-94 from my approved H1B petition ? Is it Must for me to show him both the H4 stamp w/h4 approval AND the I-94 from the 2013 H1B approval with effective date from Oct 1st ?
              >>> What you are trying to do will mess up thing. When you leave U.S, you are suppose to return all the I-94s including the one that comes with your H1B and H4 approval. If you return back in H4 visa, you will get a new I-94 matching your H4 approval. In case, your status automatically changes to H1B as of Oct 1st, you will not have a valid I-94 associated to H1B. Also, you wouldn't be 100% sure whether you are in H1B or H4 status as of Oct 1st since you left the country inbetween. If you had to leave, then return back only after Oct 1st. If you return back after Oct 1st in H4 visa, you cannot work. If you return in H1B visa, you should be working and getting paid.

              #2: Will I have to apply for COS again after coming back from India OR the H1B status will automatically kick in from Oct 1st ?
              >>> Read the above answer.

              #3: In order to avoid any risks of RFE while we upgrade to Premium process, what more documents we should ensure are included in the file? The employer has already applied with company’s Appointment letter with employment terms for an internal project for 3 years duration. How should the company show that it is indeed a 3 year project ? (as it seems USCIS is asking more of evidence now than simply the statements from petitioner or the end client) ?
              >>> The attorney would know what documents to attach. A detailed project document including the number of people who will be working and clear project projection and time lines will need to be submitted.

              #4 If I move while the application is under premium processing, the USCIS Status Page says that I have to let them know of new address. With change in my State due to the move, will it have any bearing on the Success/ RFE / Denial of my application ? The petition location for the project is NY and the new address is in New England area.
              >>> A new LCA need to be filed first and then the H1B need to be amended for the new location.
              Thanks much for your kind reply.


              Re: Ans 1: Currently I am in H4 status. so when I depart I will surrender the h4 I-94 and come back with my new extension of H4 I-94.. Since I am not in H1b status till Oct 1st, 2012 why do I have to surrender the H1B i-94?

              Also, according to clarification from USCIS on Last Action Rule.

              My approved H1b would automatically kick in from Oct 1st, so I hope that there is no confusion Re: the status on Oct 1st.. Is this understanding of mine right that we do not have to give the H1b I-94 on departure ?..b'coz currently in h4 status and coming back on h4 again much before Oct start date.... I guess the H1B i-94 is also effective from Oct 1st only right... ?

              Scenario 2: if we really do need to turn both current H4 and newly approved H1b i-94 when we depart USA, can I again apply for h1B COS after coming into USA on h4 in July/August ? Thanks.
              Thanks again for helping to navigate the complex and inefficient visa, i-94 and petitions process.
              Last edited by drusa_2006; 06-06-2012, 11:17 AM.

              Comment


              • #8
                The very basis rule as per USCIS is to surrender all the I-94s when you leave U.S. Technically you are not suppose to have any I-94 when you are outside U.S. As per USCIS, if the H1B gets approved for a COS as on Oct 1st, then the status will automatically change to H1B as of that date. But it is a pure grey area. There is 100% fool proof way to check and make sure that you are in H1B status as of Oct 1st since you exited the country and re-entered in H4. It is kind of taking a chance. You deceide whether to take the chance or not. I wouldn't do it if I were you. If I had to leave, I will re-enter back after Oct 1st in H1B visa and start working or in H4 visa and will remain to be a dependent. The employer can file a COS from H4 to h1B anytime when you are back. When the COS gets approved you can start working.
                Not a legal advice. Use of this information is strictly at your own risk.

                Comment


                • #9
                  Enter on H4 while H1B is pending approval.

                  Hi

                  I am in similar situation.

                  My H1B for first time has been filed under CP (not COS) when i was outside USA. It is yet to be approved.

                  I am planning to travel to USA next week on H4 VISA.

                  Can i apply for Change of status in this case or i should travel outside USA and get stamping done (as my H1 was filed under CP). ?


                  Thanks

                  Comment


                  • #10
                    Once the petition gets approved, your employer can amend the petition for a COS from H4 to H1B (You have to be in U.S at the time for amendment and you cannot leave the country). You cannot work until the COS gets approved. It will take 2-3 months by normal process and 15 days by premium.

                    Originally posted by seattle12 View Post
                    Hi

                    I am in similar situation.

                    My H1B for first time has been filed under CP (not COS) when i was outside USA. It is yet to be approved.

                    I am planning to travel to USA next week on H4 VISA.

                    Can i apply for Change of status in this case or i should travel outside USA and get stamping done (as my H1 was filed under CP). ?


                    Thanks
                    Not a legal advice. Use of this information is strictly at your own risk.

                    Comment


                    • #11
                      h4 to h1.. traveling to india?

                      Hey shervin143...
                      I know u have replied in detail in the previous posts and I have a similar question with a little difference ..,I hope u can reply... Thanks in advance.
                      I'm currently in USA on h4 and applied for h1. I don't know how they applied ( cp or cos) . I just got an rfe which the employer said they will reply to within the stipulated time limit (mostly in next 15-20 days) I'm planning to travel to india in mid December and
                      Come back in jan. can I enter the country on my h4 visa itself if my h1 apllication is still pending? Or will I have to wait in India till my h1 visa approves and ill have to get it stamped before entering USA ?
                      Also say my h1 gets approved before I leave the country or when I'm in india can I still choose to enter on h4 and only then change my status to h1?
                      Is this possible at all ? Is the change of status automatic or can we hold on to our h4 visa and choose to change our status to h1 only when we want to?
                      Or should I avoid traveling to india altogether ? Does it make a difference whether they applied
                      on cp or cos ?
                      Thanks a lot for all your valuable inputs

                      Comment


                      • #12
                        Want to visit India on current H4 valid visa, when extension is in progress.

                        Hi,

                        Hi, I have question that my wife and son are planning visit India from 10 Aug 14 to 6th Oct 14. They have valid dependent H4 visa and I-94 date till 18th Nov 14, they are coming back to USA before current visa expiry.
                        My company will file H4 extension before they will to India (before 10th Aug 14). Is their non-presence in USA will impact to H4 extension process?
                        And I-94 number change will impact extension process? because H4 extension process started on current I-94 and they will come back with new I-94.

                        Same question, I have for my H1 Visa extension
                        If I go out of USA when my H1 visa is in extension process but come back before existing visa expire, will create any problem to my H1 visa extension process ?

                        Is it better to file extension once we come back from India, means after 6th Oct 14?

                        please guide us.

                        Thanks.
                        HSM

                        Comment

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