H1 stamping for FY 2013 applications

[divyakadam]

Hi,

I am currently in the US on H4 visa. Employer A has filed for my H1 and it got approved.

Due to some medical emergency I have to travel back to India.

1) Can I travel on H4 visa and come back on the same visa or do I have to go for stamping?
2) If I go for H1 stamping and if it gets approved can i travel back immediately or do I have to wait until October to re-enter US.
3) Also I heard somewhere that FY 2013 applicants can go to visa stamping only after September. If that is the case, can we go and come back on H4 visa?
4) If for some reason my H1 visa stamping gets rejected, can i come back on H4 and re-apply for H1 from same employer as I am already cap counted.

Can someone please reply asap as I will be travelling based on this outcome of these queries.

[raghvi]

I am currently in the US on H4 visa. Employer A has filed for my H1 and it got approved.

Was it filed as COS or Consular process? Did the approval come in with a new I-94? When is the H1 effective from?


1) Can I travel on H4 visa and come back on the same visa or do I have to go for stamping?

If your h1 is effective from 01 Oct 2012 then you cannot come back on H1 more then 10 days before H1 effective date. You can enter US on H4 as long as H4 visa is valid, but you cannot work on H4. Read about Last Action rule.

2) If I go for H1 stamping and if it gets approved can i travel back immediately or do I have to wait until October to re-enter US.

If you go for H1 stamping and if it is approved and if you want to re enter US on H1 then you can travel only 10 days or less before your H1 effective date.

3) Also I heard somewhere that FY 2013 applicants can go to visa stamping only after September. If that is the case, can we go and come back on H4 visa?

You can apply for H1B visa stamping only 90 days prior to your H1B employment start date. So, if your start date is October 1st for H1B visa status, you can apply for visa stamping anytime after July 1st . You can enter US only 10 days before the start date on your I-797 petition. i.e., say if your start date is October 1st, you can only enter US on or after September 20th on H1B visa.

4) If for some reason my H1 visa stamping gets rejected, can i come back on H4 and re-apply for H1 from same employer as I am already cap counted.

If it gets rejected, few things can happen
1. Your existing H4 might be cancelled (very rare but a possibility). In which case you would have to file H4 again in order to travel to US.
2. If your H4 is valid you can travel to US and again start the H4 to H1 COS with the same employer or another employer.
3. If your application goes for a 221G or AP then you would have to decide on whether to wait for that to be cleared or travel to US on H4 if still valid.

The above points are my opinions. Please dont take them as legal advice.

[divyakadam]

Thanks a lot Raghvi,

My petition was filed as consular process. I received only the approval notice and not a new I-94.

I spoke to my attorney and he told me that my H1 effective date is Oct 1st.

Does that mean I can go and come back on the same H4 visa before Oct 1st and later file a COS from H4 to H1?

[raghvi]

If you re enter back before 01 Oct 2012, you would be given a new I-94 at POE. Before that I-94 expiry you would have to file a COS again from H4 to H1. And that COS can or cannot be approved again as consular process depending upon USCIS. If it is the same company then your company attorney would have to file file an amendment application as its an already approved case. Again, it is in the hands of USCIS to approve the amendment that is from consular process to change of status. The company attorney has to provide a valid reason for amendment and why it is essential. If it is a different employer, then you would have to give them the copy of the approved petition and they would file for a COS from H4 to H1. Till approval you cannot start employment with the employer as your case was a consular process. this is my opinion, not legal advice.

[shervin143]

No issues. You can travel back in H4 anytime as long as your H4 visa and your spouse's H1B petition remains valid (assuming your spouse is maintaining the H1B status). Once you are inside U.S, your current employer and any new employer can file a COS from H4 to H1B. You cannot work until the COS gets approved (with a new I-94).