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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24275
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Hi, I am a H1 worker in US; My wife joined me on H4 in 2011

Customer Question

Hi, I am a H1 worker in US; My wife joined me on H4 in 2011 & subsequently we converted her to H1 status with a company since 2012; Currently there is an emergency that her sister is critically ill in India & we need to visit her asap; Now the problem is for her H1 stamping in India, where we hear that possibilities of denials / admin processing is there, which would be disastrous for her job/project...

Her employer is suggesting her to go on H4 status & come back with that (her H4 stamping is valid for 1 more month - Sept 30' 2013; And after entering US we could immediately apply for her H1 with COS; But since the project team is not ready to wait for the longer duration for the approval & COS to happen, can she start working with the H1 receipt (since she is Cap-exempt & already had been on H1 previously); Requesting your advise...
Submitted: 11 months ago.
Category: Immigration Law
Expert:  Judith replied 11 months ago.

Hello,my name is Judith. Thank you for this opportunity to answer your questions.

This is underpriced.

No, she cannot port to an H1B employer when changing status from H4 to H1B based on the AC21.

That law only applies to porting from H1B to a new H1B employer.

The only option here is Premium Processing.

 

Judith

Customer: replied 11 months ago.

Hi, we are not porting (transfering); The employer would remain the same; She would just enter on H4 visa & then apply for H1 with the same employer for the same project; Question is can she start working immediately with H1 receipt itself or should she wait for the approval of COS ?


 


Yes we are ready for Premium processing & all the docs including the LCA is intact now; Plan is to wait for her arrival into US & the nest day apply for COS, expecting your reply

Expert:  Judith replied 11 months ago.

You don't understand what porting means. It does not mean moving employers.

It means being able to start work based on a fee receipt.

She cannot do that because she does not hold H1B status.

She has to wait until she has an approval for her change of status to commence employment. It doesn't matter if she is going back to work on the same project for the same employer as she last worked for or if it is a new employer. She is having a new petition filed for new employment and a change of status and has to wait for approval.

 

Judith

Customer: replied 11 months ago.

one last thing...


 


Her H4 visa stamping is valid until Sept 30' 2013 only but my H1 is valid until Oct 2015; When she enters at the POE would she get an I-94 until Sept 30' 2013 or until my H1 expiry date; If she could get it only until Sept 2013, then we would have just 3 more weeks left to get the COS approved...


 


We are applying in premium processing, so hoping to get the COS approved before her I-94 expiry, but if there is a delay/RFE, should she need to go back to Home country for H1 stamping or is there any workaround to continue in US...?

Expert:  Judith replied 11 months ago.




Her H4 visa stamping is valid until Sept 30' 2013 only but my H1 is valid until Oct 2015; When she enters at the POE would she get an I-94 until Sept 30' 2013 or until my H1 expiry date;

She will get to Oct 2015

If she could get it only until Sept 2013, then we would have just 3 more weeks left to get the COS approved...


 


We are applying in premium processing, so hoping to get the COS approved before her I-94 expiry, but if there is a delay/RFE, should she need to go back to Home country for H1 stamping or is there any workaround to continue in US...?

She will have H4 until Oct 2015.

 

Judith

Customer: replied 11 months ago.

Hi sorry to repeat the same thing, but could you please confirm on this...


 


1. My H1 stamping is valid until Sept 30' 2015 but I have my extension until Oct' 2015, so with this I could get my I-94 until Oct' 2015 at POE


2. Her H4 stamping is valid until Sept 30' 2013, but we haven't applied for her H4 extension while applying for my H1 extension, so she doesn't have any petition to show at POE


 


In the above scenario would she get her H4 stamping until Oct 2015 or Sept' 2013; Lot of things are dependant on this, would have to decide on whether she needs to go for H4 stamping again during our India visit or not, request you to please confirm, thanks...


 


(You could get a good tip :))

Expert:  Judith replied 11 months ago.

I will repeat myself.



1. My H1 stamping is valid until Sept 30' 2015 but I have my extension until Oct' 2015, so with this I could get my I-94 until Oct' 2015 at POE

H4 I-94 at POE will be until Oct 2015

2. Her H4 stamping is valid until Sept 30' 2013, but we haven't applied for her H4 extension while applying for my H1 extension, so she doesn't have any petition to show at POE

She will get an I-94 at the POE for H4 until Oct 2015.

 

Judith

Customer: replied 11 months ago.

Thanks a lot, appreciate it...And she wouldn't have any problem entering at POE showing her H4 visa & requesting for H4 status, when she has been working as a H1 worker (COS from H4 to H1 done in 2012) until today, is that right ?

Expert:  Judith replied 11 months ago.

Right, no problem at POE.

 

Judith

Customer: replied 11 months ago.

One last thing madam...


 


Is there a waiting (cooling) period for a person entering on H4 to apply for a COS to H1, because currently our plan is to apply for her COS the very next day, could there be a question by USCIS regarding her original intention to enter US on H4 ?


 


Also if there is any issue in the I-94 dates at POE, is there a way we could rectify that ?

Expert:  Judith replied 11 months ago.

There is no cooling period.

 

You can go to deferred inspection at the airport and get the I-94 corrected.

 

That is an entirely different topic you can start a new question thread on.

 

Judith

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24275
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and 3 other Immigration Law Specialists are ready to help you
Customer: replied 11 months ago.
Hi, thanks a lot for your patient replies; Waiting at the airport, small question; While departing US I know we would need to surrender I-94, but should we also surrender the I-94 that came as part of the I-797 extensions...?
Customer: replied 11 months ago.
Relist: Other.
Diff question
Expert:  Guillermo J. Senmartin, Esq. replied 11 months ago.
Hello. You surrender the last I-94 that you received.
Customer: replied 11 months ago.
Ok thx, I have 3 I-94 with me, should I retain the older ones ?
Expert:  Guillermo J. Senmartin, Esq. replied 11 months ago.
Just turn in the last one that you got.

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