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  • H4 -> H1 Transition - Please Help

    Hi All,

    Here is my situation -

    1. I have H4 visa (my husband is on H-1B) which is expiring on 09/30/2012.
    2. I had applied for H1 through a consultant in 2010 and it's approved on 05/15/2012 and good until 09/30/2013.
    3. Since my husband's employer filed for his H-1B extension so my H4 extension is also filed so I have H4 extension approved as of 6/20/2012 which is good until 09/30/2015.

    We are also planning to visit India in Aug/Sep 2012.

    Here are the questions I have:

    1. What is my current status?
    2. I have not started working yet so that means I am still on H4 status?
    3. If I go to India and come back before 9/30/2012 (before expiring of my first H4), will I have to get H4 or H1 stamping?
    4. If I get the H4 stamping then how can I get the status changed to H1 again once I come back to USA?
    3. If I try to get the H-1B visa and for some reason it gets denied then what option I would have while I am in India?

    Thanks in advance
    Ruchi

  • #2
    1. I have H4 visa (my husband is on H-1B) which is expiring on 09/30/2012.
    2. I had applied for H1 through a consultant in 2010 and it's approved on 05/15/2012 and good until 09/30/2013.
    >>> Are you saying that your H1B got approved after 2 years from filing? That sounds unbelievable to know a petition was under process for 2 years. What is your H1B effective date?

    3. Since my husband's employer filed for his H-1B extension so my H4 extension is also filed so I have H4 extension approved as of 6/20/2012 which is good until 09/30/2015.

    We are also planning to visit India in Aug/Sep 2012.

    Here are the questions I have:

    1. What is my current status?
    >>> It is hard to say without knowing the H1B effective date. Did the H1B got approved for consular process or COS (did the H1B approval come with a new I-94)? Search and read about the last action rule.

    2. I have not started working yet so that means I am still on H4 status?
    >>> It depends on the answer to the above question. If you are in H1B status, then you should be working and getting paid to maintain the H1B status. If not, you are considered out of status on H1B.

    3. If I go to India and come back before 9/30/2012 (before expiring of my first H4), will I have to get H4 or H1 stamping?
    >>> Do you want to return back and work or want to be a dependent? If you want to be a dependent, then enter U.S in H4 visa. If you want to work, then enter U.S in H1B visa. Remember to return all your I-94s including the ones that came with your approval notices when you leave. If you are currently in H1B and if your H4 will become effective as of September because of the H4 extension, then it is advisable to return back after the H4 effective date in H1B visa if you are planning to return back and work immediately for the employer. again, search and read about the last action rule.

    4. If I get the H4 stamping then how can I get the status changed to H1 again once I come back to USA?
    >>> The employer will need to file a COS from H4 to H1B again. You cannot work until the COS gets approved.

    3. If I try to get the H-1B visa and for some reason it gets denied then what option I would have while I am in India?
    >>> You can try and get the H4 visa stamped.
    Not a legal advice. Use of this information is strictly at your own risk.

    Comment


    • #3
      Thanks for the response

      Hi Shervin

      Thanks for the response.

      >>> Are you saying that your H1B got approved after 2 years from filing? That sounds unbelievable to know a petition was under process for 2 years. What is your H1B effective date? - Yes it took about 2 years to get approved. I almost forgot about this and all of the sudden I got an email from employer that it's approved. The effective date is from 5/15/2012 to 9/30/2013.


      >>> It is hard to say without knowing the H1B effective date. Did the H1B got approved for consular process or COS (did the H1B approval come with a new I-94)? - I-94 numbers on H4 (which is expiring on 9/30/2012) and H1-B approval document are same. Where can I read about last action rule?

      >>> It depends on the answer to the above question. If you are in H1B status, then you should be working and getting paid to maintain the H1B status. If not, you are considered out of status on H1B. - I have not start working yet. My employer sent me I-797A notice and offer letter (dated 4/9/2012). He also asked me to apply for SSN.


      >>> Do you want to return back and work or want to be a dependent? If you want to be a dependent, then enter U.S in H4 visa. If you want to work, then enter U.S in H1B visa. Remember to return all your I-94s including the ones that came with your approval notices when you leave. If you are currently in H1B and if your H4 will become effective as of September because of the H4 extension, then it is advisable to return back after the H4 effective date in H1B visa if you are planning to return back and work immediately for the employer. again, search and read about the last action rule. - Yes I want to return and work. What difference it would between returning just H4 I-94 vs both for h4 and H1-B if the I-94 numbers on both are same? We are planning to go to India in Aug and my husband's visa is expiring on 7/4/2012 and he has the extension for his H1-B until 9/30/2015 so he will have to go for stamping but my H4 is expiring on 9/30/012 so in that case would I have to go for H4 stamping if I am coming back before 9/30/2012?

      4. If I get the H4 stamping then how can I get the status changed to H1 again once I come back to USA?
      >>> The employer will need to file a COS from H4 to H1B again. You cannot work until the COS gets approved. - So COS will not be fresh H1-B filing but would be just COS to my earlier approved H1-B, right?

      3. If I try to get the H-1B visa and for some reason it gets denied then what option I would have while I am in India?
      >>> You can try and get the H4 visa stamped. - I already have the H4 visa until 9/30/2012 and if my H1-B is rejected they also I will have to go for stamping if I come back before 9/30/2012?

      My husband told about my H1-B to his company's attorney and attorney said that he would be withdrawing my H4 extension - how that is going to affect my situation?

      Also I spoke to my employer (Desi consultant) and he is saying it's not advisable that to go for H1-B stamping as for some of his other candidate's visa got rejected.

      I am really confused that what the right thing to do here.

      Your help is really appreciated.

      Thanks
      Ruchi

      Comment


      • #4
        Yes it took about 2 years to get approved. I almost forgot about this and all of the sudden I got an email from employer that it's approved. The effective date is from 5/15/2012 to 9/30/2013.
        >>> It is so weird that USCIS approved it after 2 years without even knowing whether the job still exist or not.

        I-94 numbers on H4 (which is expiring on 9/30/2012) and H1-B approval document are same. Where can I read about last action rule?
        >>> Google for it or search in immihelp. You status will change as per the last petition that becomes effective.

        I have not start working yet. My employer sent me I-797A notice and offer letter (dated 4/9/2012). He also asked me to apply for SSN.
        >>> If your H1B got approved with a new I-94 with the effective date of 5/15/2012, then you are out of status on H1B right now. You should be working and getting paid to maintain the H1B status. Eother start working or leave the country and return back in H4 visa which will put you back into H4 status and you can be a dependent.

        Yes I want to return and work. What difference it would between returning just H4 I-94 vs both for h4 and H1-B if the I-94 numbers on both are same?
        >>> A simple rule - No I-94s should be with you when you are outside U.S. So return all the I-94 when you leave the country. Otherwise, proper exit records will not be registed against the I-94.

        We are planning to go to India in Aug and my husband's visa is expiring on 7/4/2012 and he has the extension for his H1-B until 9/30/2015 so he will have to go for stamping but my H4 is expiring on 9/30/012 so in that case would I have to go for H4 stamping if I am coming back before 9/30/2012?
        >>> It depends on whether you want to enter U.S in H1B visa and start working for the employer or enter in H4 visa and be a dependent. If you want to enter U.S in H4, then you can do that before your current H4 visa in the passport expires (No need to go for stamping as your H4 visa will be valid as of the date of your return). If you want to enter in H1B visa, then you need to go for the stamping. If you enter in H4, you cannot work unless a COS to H1B is filed and it gets approved.

        So COS will not be fresh H1-B filing but would be just COS to my earlier approved H1-B, right?
        >>> Right. You cannot work until the COS gets approved.

        I already have the H4 visa until 9/30/2012 and if my H1-B is rejected they also I will have to go for stamping if I come back before 9/30/2012?
        >>> Whe you go for H1B stamping, the first thin that will happen (at least in most cases) is the cancellation of your H4 visa. Only after that they will decide whether to issue you the H1B or not. So if H1B is rejected and H4 is cancelled, you have to go for the H4 stamping again.

        My husband told about my H1-B to his company's attorney and attorney said that he would be withdrawing my H4 extension - how that is going to affect my situation?
        >>> If they can withdraw it, then it is all good. If they cannot (with the application is already taken for processing), then the H4 will get approved which will put you back into H4 status and you should not work.

        Also I spoke to my employer (Desi consultant) and he is saying it's not advisable that to go for H1-B stamping as for some of his other candidate's visa got rejected.
        >>> Seems like a shady desi consultancy company who cannot provide the right documents for stamping.

        I am really confused that what the right thing to do here.
        >>> You are currently out of status. That is the biggest problem. Either start working or leave the country to avoid the out of status issue.
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment


        • #5
          Applied SSN

          Hi Shervin,

          Thanks for your help.

          So we talked to to my husband's lawyer and he said that based on what dates I have on h1-B approval notice I will be on H-1B status. He is going to withdraw my H4 extension.

          Then I spoke to my employer and he asked me to apply for the SSN and I went to apply for the same. At the SSN office the guy told me that I am on H4 status after looking at my documents. Though he accepted my application and gave me a letter that I will be getting the SSN in 4 weeks if I am authorized to work and if not then I will get a letter for denial. On that letter it's also written that I can start working because I have already applied for SSN.

          So write now I am in wait and watch status also my employer is going to get my working.

          I will update here as soon as I get SSN or letter of denial.

          Thanks
          Ruchi

          Comment


          • #6
            Letter from SSN

            Hi Shervin,

            Today we received the letter from SSN stating that:

            -------------
            The Department of Homeland Security is unable to verify the immigrant document your submitted as evidence of your lawful alien status. You should contact that agency to clarify your current immigration status.

            -------------

            Does it mean that they are not able to issue me SSN because I am still on H4 status or am I out of status?

            Thanks for your help
            Sandeep

            Comment


            • #7
              SSA office doesn't care if you are out of status on H1B or not. If your current status in H1B and if you have a valid I-94, then they will issue you a SSN. It could most likely be that they are unable to make sure that you are currently in H1B status. Their records could show that you are still in H4. Contact the nearby CBP post.

              Originally posted by Rosyee View Post
              Hi Shervin,

              Today we received the letter from SSN stating that:

              -------------
              The Department of Homeland Security is unable to verify the immigrant document your submitted as evidence of your lawful alien status. You should contact that agency to clarify your current immigration status.

              -------------

              Does it mean that they are not able to issue me SSN because I am still on H4 status or am I out of status?

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

              Comment

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