H4 to H1B conversion\Change of status

[gautham091986]

Hello Everyone, 

We filed H1B for my wife in 2014 and it was picked in the lottery and the petition was approved. Her visa status changed from H4 to H1B automatically on 10/1 as she was in the US all along the process. She delivered our first baby on 10/4 and so she could not begin working on H1B immediately. In December 2014, we went to India and she went back to H4 visa stamping (did not maintain H1B status those 2-3 months, no payroll was run). 

My wife is still on H4 and would now like to use the H1B that was issued on Oct 2014. Could you let us know the process to do that. I have the following questions. 

 

1. If she works for the same company that filed her H1, do they need to apply for "Change of status" or will it be a H1B transfer. 
2. If she wants to work for a different company, can they take a visa transfer using the original petition. (expected ETA). 
3. Would she be questioned on why she could not maintain her status for those -2-3 months. Can she justify saying she was on maternity leave. 
4. Any other challenges that she could face in the process of visa transfer. 

Appreciate your time. Please help.

Thanks,

[pontevecchio]

It may be possible for the original sponsor to file a non cap H1 petition with a COS from H4 and she can start only on approval. Since new rules have been made she may not be able to transfer to another employer other than the original sponsor without at least working for the Original sponsor for a few days. I suggest discussing her specific situation with the firm of Murthy. Maybe a phone consult?