H1B to H4 to H1B

[myvisastatus]

Hello,

 

My case is as follows:

 

* I was working for company 'A' till some date in September 2013. I was laid off.

 

* After that, I was searching for new job. But, as I did not find new job soon, in the last week of October, I applied for H4 (There was a gap of almost 40 days between my last day of working with company 'A' and filing for H4).

 

* I am sure that my previous employer (company 'A') had not revoked my H1B till my H4 petition was filed.

 

* My current state of H4 is: Initial review.

 

* Now, I have received offer from company 'B', who is willing to sponsor H1B for me.

 

 

 

My Q's are as follows:

 

1. Will there be any problem in my H1B processing/transfer, because H4 was filed almost 40 days after the last day of work with company 'A'?

 

2. If yes, then is there any solution over those problems?

 

3. I have a 'severance' paystub from employer (company 'A'). The date of issuance of that paystub and the date of filing for H4 differ by less than 30 days (almost 28 days). So, will this 'severance' paystub help me in avoiding issues like RFE etc?

 

4. Company 'B' has not yet started visa filing/transfer process. Will it be problematic if they delay the process? Or it will not make any difference as my H4 petition is already filed?

 

 

Thanks in advance for the help.

  

 

 

[jairichi]

Hello,

 

My case is as follows:

 

* I was working for company 'A' till some date in September 2013. I was laid off.

 

* After that, I was searching for new job. But, as I did not find new job soon, in the last week of October, I applied for H4 (There was a gap of almost 40 days between my last day of working with company 'A' and filing for H4).

 

* I am sure that my previous employer (company 'A') had not revoked my H1B till my H4 petition was filed.

 

* My current state of H4 is: Initial review.

 

* Now, I have received offer from company 'B', who is willing to sponsor H1B for me.

 

 

 

My Q's are as follows:

 

1. Will there be any problem in my H1B processing/transfer, because H4 was filed almost 40 days after the last day of work with company 'A'?

 

2. If yes, then is there any solution over those problems?

 

3. I have a 'severance' paystub from employer (company 'A'). The date of issuance of that paystub and the date of filing for H4 differ by less than 30 days (almost 28 days). So, will this 'severance' paystub help me in avoiding issues like RFE etc?

 

4. Company 'B' has not yet started visa filing/transfer process. Will it be problematic if they delay the process? Or it will not make any difference as my H4 petition is already filed?

 

 

Thanks in advance for the help.

1. Yes. Your H1B would be approved as consular processing.

2. You need to exit and enter US once H1B gets approved as consular processing.

3. Nope.

4. Will not be a problem. But, if your H4 gets approved after H1B approval according to last action rule you will go back to H4.

[myvisastatus]

jairichi,

Thanks for the reply and guidance. 

So, can I start working on H1B visa before exiting and entering the US?

 

 

[jairichi]

jairichi,

Thanks for the reply and guidance. 

So, can I start working on H1B visa before exiting and entering the US?

 

 

If your H1B I797 does not contain I94 attached to it you need to exit and enter US with valid H1B visa and I797 to start working for employer.

[myvisastatus]

Ok...thanks.

 

But, mostly I have heard the term 'Consular Processing' in relation to Green Card processing.

[jairichi]

Ok...thanks.

 

But, mostly I have heard the term 'Consular Processing' in relation to Green Card processing.

People who were out of status when applying for a H1B transfer normally end up getting an I797 without I94 and is considered consular processing.

[JoeF]

Ok...thanks.

 

But, mostly I have heard the term 'Consular Processing' in relation to Green Card processing.

Yes, that's what the term usually refers to.

But some people have started using that term for getting an H1 petition approved without COS, too.

It actually has nothing to do with Consular Processing. All it is is an approved H1 petition with a denied change of status.

[pontevecchio]

It is used to indicate one cannot avoid the visa. what's in a name? A rose etc.

[myvisastatus]

Thank you all for your replies! 

 

One more Q from my side:

New employer is filing for H1B. Can I start working with new employer after H1B is filed or I need to wait till approval? (Again, to  refresh my scenario: I was earlier on H1B with employer A. Left employer A in the month of September. Filed for H4 in the month of October and current status of H4 is 'Initial review'. I have found employer B who is ready to file H1B for me.)

 

Thanks in advance!!!

[jairichi]

Thank you all for your replies! 

 

One more Q from my side:

New employer is filing for H1B. Can I start working with new employer after H1B is filed or I need to wait till approval? (Again, to  refresh my scenario: I was earlier on H1B with employer A. Left employer A in the month of September. Filed for H4 in the month of October and current status of H4 is 'Initial review'. I have found employer B who is ready to file H1B for me.)

 

Thanks in advance!!!

Since you are no longer working on H1B status and currently waiting for a decision on your H4 application you can begin working for employer B only after approval.

[myvisastatus]

Thanks for the reply.

 

But, as per http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422/0-0-0-3827.html , I can start working after the petition is filed, isn't it?

[JoeF]

It is used to indicate one cannot avoid the visa. what's in a name? A rose etc.

It still is important that everybody uses the same term for the same thing.

Communication wouldn't be possible if there is no consensus about what the terms mean.

[jairichi]

Thanks for the reply.

 

But, as per http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422/0-0-0-3827.html , I can start working after the petition is filed, isn't it?

Nope you cannot. One can begin working for new employer upon receipt notice only when moving during active H1B status. In your case the day you stopped working from old employer you are no longer on active H1B status. So, you need to wait for H1B approval before you can join new employer and start working.

[pontevecchio]

JoeF,

 

 I remember you correcting me the other way a few years back. Anyway I agree with consensus.

[myvisastatus]

Thank you everybody for your replies!

 

Now, let me again tell how the case has been proceeded till now.

 

Initially (in my first post), I did not tell about the second H4 filed for me (just not to complicate the scenario). But, now tell me tell everything in detail:

 

* I was working for company 'A' till mid September 2013. I was laid off.

 

* First H4 filing: 

After that, I was searching for new job. But, as I did not find new job soon, in the last week of October, I applied for Change of Status from H1B to H4 (There was a gap of almost 40 days between my last day of working with company 'A' and filing for H4), as my wife is working on H1B visa.

 

* I am sure that my previous employer (company 'A') had not revoked my H1B till my H4 petition was filed.

 

* Second H4 filing: 

In first week of November 2013, my wife changed her employer. So, I again filed for Change of Status from H1B to H4 with her new employer.

 

* H4 to H1B for me:

In January 2013, I received offer from company 'B' and they filed H1B for me.

 

* RFE for H1B:

I received RFE for this H1B asking for the final decisions of both of the H4 petitions filed for me. RFE says if one or both of those H4 petitions are denied or withdrawn, my H1B will go for consular processing and I have to go out of the country for stamping. Also, my employer can also ask for consular processing. But, I did not want to appear for stamping interview, as I thought the gap in last day of work with company ‘A’ and my first H4 filing will create problem for my H1B stamping. Both H4's were in 'Initial review' at the time when I received this RFE. So, I decided to wait for the decisions of those H4's.

 

* RFE for First H4:

Recently, I received RFE for first H4 filed and it is asking for the pay records of me and my wife for the months of September and October 2013. I have my wife’s pay records for both those months. But, I have my pay records only for the month of September 2013. As I did not work during the month of October, I do not have my pay records for that month.

 

* Status of Second H4:

Second H4 filed is still in initial review. But, I hope that they will process it soon.

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After having described my current situation, I need guidance from you people:

 

1. What do you think should I respond to RFE for First H4? (If I respond with all the documents, except my pay records for October 2013, will they decline it?)

 

2. If I attach some cover letter explaining them that there was delay from my side in filing H4, will they consider it and approve H4?

 

3. If my H4 gets declined, then I have no option other than going for Consular Processing. So, does that decline reduce my chances of getting H1B visa stamped?

 

4. If I decide to withdraw both of the H4 petitions filed and appear for Consular Processing interview in my country, what are my chances of getting H1B visa stamped?

 

(Thanks in advance for reading this really long post and your answers)

[jairichi]

1. Your COS to H4 will be declined as you were out of status from the last day with H1B employer. Employer revoking the H1B or not is irrelevant.

2. USCIS will not consider your reasoning.

3. It will not affect your H1B approval as it is independent of your COS to H4 petition.

4. I doubt you can withdraw your COS to H4 application. If you can or not it will not affect your H1B visa stamping.

[myvisastatus]

1. Your COS to H4 will be declined as you were out of status from the last day with H1B employer. Employer revoking the H1B or not is irrelevant.

2. USCIS will not consider your reasoning.

3. It will not affect your H1B approval as it is independent of your COS to H4 petition.

4. I doubt you can withdraw your COS to H4 application. If you can or not it will not affect your H1B visa stamping.

Thanks, Jairichi!

 

You have been very helpful!!! :)

[myvisastatus]

1. Your COS to H4 will be declined as you were out of status from the last day with H1B employer. Employer revoking the H1B or not is irrelevant.

2. USCIS will not consider your reasoning.

3. It will not affect your H1B approval as it is independent of your COS to H4 petition.

4. I doubt you can withdraw your COS to H4 application. If you can or not it will not affect your H1B visa stamping.

 

Hello,

 

I am deciding to go for consular processing for my H1B stamping. Will there be any problems during visa stamping, because I did not file Change of Status application after leaving my previous job immediately (I filed for Change of Status almost 40 days after the last day of my work with my previous emplyer)?

 

Thanks in advance!

[pontevecchio]

Everything depends on company credibility.

[jairichi]

Hello,

 

I am deciding to go for consular processing for my H1B stamping. Will there be any problems during visa stamping, because I did not file Change of Status application after leaving my previous job immediately (I filed for Change of Status almost 40 days after the last day of my work with my previous emplyer)?

 

Thanks in advance!

You are most welcome.

If asked by VO just answer the truth. Those 40 days will not affect your stamping.

[myvisastatus]

Everything depends on company credibility.

Thanks, pontevecchio!

Will you please explain what do you mean by company credibility?

 

[myvisastatus]

You are most welcome.

If asked by VO just answer the truth. Those 40 days will not affect your stamping.

Thanks a lot, jairichi! You have helped me a lot!

 

Does my situation fall under overstay?

[jairichi]

Thanks a lot, jairichi! You have helped me a lot!

 

Does my situation fall under overstay?

Yes.

[myvisastatus]

Yes.

But, the end date on my I-94 is till Sept 2015. Still it will be considered as Overstay?

[myvisastatus]

You are most welcome.

If asked by VO just answer the truth. Those 40 days will not affect your stamping.

Thanks for giving me a good hope!

 

Have you seen any case like mine, where employee on H1B visa was laid off/quit the job and applied late for COS and still got next H1B visa through consular processing?