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Dibyendu Kumar Sasmal

H4 porting to new employer

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I am working at an academic institute in the USA with H1B visa and my wife has H4 visa. Before the status change to H, I was in J1 and my wife was in J2 visa. Our H1B-H4 was approved in Aug-2017 with the starting date  01/01/2018. We travelled to India in October-2017 after we got H1B approval and came back with J1-J2 because H1B starting date was Jan-1, 2018. 

Now, I want to change my employer. I am travelling to India and my wife is now in USA with H4. I will be back to USA with new H1B stamp/I-94 for the first time. But my wife's last action in I-94 will show up as J2. The new employer is saying this may cause a problem with new I-539 filling. She may get REF or even NOID. 

Comment from new employer: "Of course, at the time of her last admission, she was technically ineligible to enter the U.S. as an H-4 because it wasn’t at least 10 days prior to her H-4 starting date and you also were not on an H-1B yet until 01/2018.  So, there’s an argument to make that she can use the I-94 card issued on her H-4 approval notice as proof of her current H-4 status which she was automatically converted to effective 01/2018 when you became an H-1B holder.  We may be able to argue that this automatic conversion which took place in January of 2018 was the ‘last action’.  However, an officer may not agree, as the H-1B was approved in August of 2017 and her last entry came after that in October of 2017."

Please suggest the best way to do. Is it ok to go ahead and file because we have not done anything wrong?  




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