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BizMatters
BizMatters, Lawyer
Category: Immigration Law
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Experience:  JD -NYS Bar
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We are in US A. My husband is on H1B Visa and I am on H4 Visa.

Customer Question

We are in US A. My husband is on H1B Visa and I am on H4 Visa. The H1 and the H4 are valid till 30-SEP-2009. I-94 on my passport and my husband’s passport is also stamped till 30-SEP-2009. I am planning to apply for a H1B visa on 1-April-2009. In case my H1B is accepted I would need to reenter USA on or after 1-OCT-2009 so as to get my status changed from H4 to H1. Now the issue is as below: I cannot leave USA between 1-APR-2009 To 1-OCT-2009, since my H1 petition would be under process(As I would have to surrender my I-94 at the time of leaving US shore and this would cause my H1B petition to be rejected - As told to me by my friends). If I stay until 1-OCT-2009, I would be overstaying on my I-94 by 1 days. If I intend to get my I-94 extended, I would need to first get my H4 visa extended(including my husbands H1B Visa)....Unfortunately, USIC does not allow H1 visa extension before 6 months(which is 30-March-2009) from expiry. So what are my options?
Submitted: 5 years ago.
Category: Immigration Law
Expert:  BizMatters replied 5 years ago.

DearCustomer

 

Generally you do not have to depart the U.S. necessarily to change status from H4 to H-1B. Your attorney can file a change of status and that should produce new I-94's.

 

There is no need when changing status from H4 to H1 while in the U.S. to depart and re-enter. You should get new I-94's issued with the approval notice.

 

Reference: http://www.uscis.gov/files/form/i-539.pdf

 

Overstaying your I-94 while in H4/H1 status is a matter of discretion at the boarder. The ICE has guidence that you are allowed a reasonable time to depart the U.S. Generally, while it is not always the case, you will have no problem departing the U.S. within a few days of the expired I-94 (H4/H1)

 

If this answer does not address all of your issues regarding changing status from H4 to H1, please let me know.

Customer: replied 5 years ago.
Hi,
-Is 1-OCT-2009 a sacrosanct date to get the H1 stamped or it could get delayed based on any reason? My concern is that would I need to only overstay by 1 day beyond my I-94?
-What would be the impact of my H4 extension on my H1 petition? Since
I would file my H1B on 1-April and would apply for H4 extension (lets say on 1-May-2009)
.
I guess, I would feel comfortable if you could tell me if the below would work or not and if there is any risk/apprehension etc?
1. Apply H1B on 1-April-2009
2. Apply H4 Extension on 1-May-2009
3. Wait for the H1 lottery/processing/interview/whatever else happens as part of H1 visa processing.
4. Overstay I-94 by one day and leave for Canada on 1-October
5. Return back to USA on 2-October and get H1 stamped.
Regards RG

Expert:  BizMatters replied 5 years ago.

DearCustomer

 

I guess I am missing something here.

 

Why do you think you need to get the visa and or visa stamp? Let me state this again. Just to make sure you understand correctly.

 

If you are approved for an H-1B visa, there will be no need to depart the U.S. and re-enter on a visa to remain in the U.S Your attorney would include a change of status requesting new I-94's. You will get New I-94's indicating you are "in status" as an H-1B.

 

If your current H4 is expiring, you can have your attorney file to extend status, and get new I-94's all without departing the U.S. You can remain in the U.S. until the extension is approved or denied.

 

October 1, is not sacrosanct in terms of visas in your circumstances. you do not have to get your visa stamped, because you would have changed status in the U.S. and you would have new I-94's indicating you are present in H-1 status. You can change status from H4 to H-1 without departing the U.S. There is no need to get a new visa in your passport until you travel the next time. So the only reason to do depart and re-enter in status in terms of the visa in your passport is to avoid delays on future trips. So essentially you can depart the U.S. to re-enter at any time after the approval. It does not have to be on that date. (October one is sacrosanct as you say with respect to the start date of your work status in relation to the start date of employment. The petitions filed on April 1 are for jobs starting on October 1)

 

The H4 extension would not impact your H-1. If the H-1 is approved, then you would get new H-1 I-94's with a begin date, and on that date you would no longer be in H4 status,you would be in H1 status.

 

Yes you can apply for an H4 extension on 1 may if the H1 was not approved. BUT you would not have to. Some attorneys would advise you that you can wait until the H1 is approved or denied. But in your case I would recommend extending the H4 as soon as you can, if your H1 has not been approved.

 

in response to your itemized concerns:

 

1. apply for H1B YES

2. Apply H4 YES, but follow your attorney's advise on this.

3. Wait YES

4. Overstay....NOT an issue. Remember, if your attorney does it right, then you can get new I-94's while in the U.S. You do not have to depart unless you want to for convenience purposes.

5. See number for. Will work if that is what you want to do

 

 

Customer: replied 5 years ago.
Hi,
I am extremely sorry to reply back on this so very late.
"If your current H4 is expiring, you can have your attorney file to extend status, and get new I-94's all without departing the U.S. You can remain in the U.S. until the extension is approved or denied."

"Generally you do not have to depart the U.S. necessarily to change status from H4 to H-1B. Your attorney can file a change of status and that should produce new I-94's."

Looking at the two snippets from the last 2 replies, it seems that I would get a I-94 through the H4 extension and another through the H1 COS...Am I getting lost somewhere?

All over the internet I read that a new I-94 while H1 is under process has complications...How can I avoid these complications?

I would greatly appreciate if you could help clarify the above.
And I apologize for the delayed response from my side.
Expert:  BizMatters replied 5 years ago.

DearCustomer

 

Without knowing the complications they mention, I am not able to address them specifically.

 

The only complications I can come up with are:

 

1. You have to apply for the change of status to get the new I-94's before the current I-94 expires. AND

 

2. That the next time you travel outside the U.S., you will have to make time to get a new visa for the new status in order to re-enter in status. This means you simply have to travel with your visa packet and approval notice. I have never seen this as a problem with any of my clients.

 

The way you minimize these problem is

 

To concurrently file the petion for the new visa with a change of status, and to do so before the current I-94 expires.

 

We have found that we sometimes have to get an extension of status in order to make sure this does not occur, if possible.

e

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