H4 to H1 Transfer while not on H4 already in US

[rbp]

Hi, Here is my current situation and I am really confused how should I proceed . Need valuable advise from someone on this .

My query : Is Changing from H-4 to H-1B status possible only if the person is in H-4 status in the U.S. at the time of filing of H1 ?? Cant we apply for H1 while we are on L2 first , which is expiring soon and changing status to H4 after october ?

My complete scenario is as described below :

I am currently on L1B visa and My wife is on L2 with a valid work permit . But both of our visa's are expiring on June 17th,2012 and we would be travelling back to India by June 17th. My company has already applied H1B visa for me and I have already got the receipt number. I will be coming back to US On october 1st on the approved H1B visa and my wife on H4 dependant visa.
My wife is also from IT background and has worked for MNC's with good IT experience. I am looking for employment oppurtunity for her once I am back to US , but since she will not be able to work on H4 , Below is what I am planning to do :

I will be coming to US on october 1st with H1B Visa and I will be bringing my wife on H4 dependant visa . In the meanwhile , before I travel back to India before June 17th, I will apply H1B visa for my wife seperately so that the approved petition will be ready by October 1st. Once both of us are back in October , I will do a H4 to H1B transfer for my wife and she will already have an approved petition by that time , both of us can work on our own individual H1B visa .

My query is : Is the option I discussed above of H4 to H1B transfer & working possible ? I have read on few forums that its possible and its common scenario but needed a confirmation before I go ahead with this approach. Please let me know ..Thanks so much for your support.

[shervin143]

Here is what you have to do. Find an employer who can file a h1B sponsor for your file in Consular Process. Things will get complicated if her H1B is filed for Change of Status. Once the petition gets approved for Consular process, you can file a COS to H1B anytime after Oct 1st as long as your wife is in U.S in any other status. She won't be able to work until the COS to H1B gets approved.

[rbp]

H4 to H1 Transfer while not on H4 already in US

Thanks for the response , but I didnt exactly get it. Here is the scenario again.

Current Status till June 2012 - I am on L1B & My wife on L2 .Going back to India after visa expiry in June 2012

Petitions in process now : My company filed my H1B which will be active in October 2012.
I found an employer who is ready to file a H1B for my wife as well now but didnt file it yet. Planning to file now so that both of our petitions are approved & ready by July/Aug 2012 .

US Entry in October : I will be coming in October 2012 on H1B my company has applied.
My wife will be coming on H4 as my dependant.

After entry in US : I will continue my work on my H1B .
Can I apply a COS for my wife from H4 to H1B in October as she will already have approved H1B petition ?
Is the approved H1B for my wife in Aug 2012 valid as its applied even though its applied before H4 in terms of timing .
She will anyways start working only after COS to H1B is approved after october. This is my query.

Hope this makes the scenario a bit more clear..Thanks again for the response.

[shervin143]

Can I apply a COS for my wife from H4 to H1B in October as she will already have approved H1B petition ?
>>> Yes.

Is the approved H1B for my wife in Aug 2012 valid as its applied even though its applied before H4 in terms of timing .
>>> Yes. Ask the employer to file the H1B for consular process. Search and read what consular process means.

She will anyways start working only after COS to H1B is approved after october. This is my query.
Hope this makes the scenario a bit more clear..Thanks again for the response.
>>> Your question was clear the previous time. The previous answer is the same as above.