H1-H4 COS: File for COS v/s Travel to India ?

thedon

By thedon,
in H1B : H-4 Issues

Recommended Posts

thedon Member

thedon

Posted
Posted

Hello and thanks for everyone's contribution towards this helpful forum.

 

I have a quick query. My wife is in the US on her stamped H4 valid till Oct 14.

Her H1B visa got approved in the first week of January 2014 (delay due to RFE). However, it seems that the job that we applied for isn't available due to some reason and my wife would apply for a COS back to her H4.

 

Now, is it preferable to file for a COS since we don't have any pay stubs and if a RFE comes for pay-stubs we might be stuck! My wife  has plans to travel to India for couple of month but will leave the US only in Feb 14 - does this work ?

 

Personally, I prefer the "travel and come back on H4" option since even if we file for COS she will still leave for India in Feb '14 and come back in May '14 but obviously the issue is she will be out of status for ~2 months.

 

Finally, at the port of entry will she be asked regarding her outstanding H1 approval?

 

Any comments/help regarding this matter would be highly appreciated.

 

Regards

Link to comment
jairichi Advanced Member

jairichi

Posted
Posted

Hello and thanks for everyone's contribution towards this helpful forum.

 

I have a quick query. My wife is in the US on her stamped H4 valid till Oct 14.

Her H1B visa got approved in the first week of January 2014 (delay due to RFE). However, it seems that the job that we applied for isn't available due to some reason and my wife would apply for a COS back to her H4.

 

Now, is it preferable to file for a COS since we don't have any pay stubs and if a RFE comes for pay-stubs we might be stuck! My wife  has plans to travel to India for couple of month but will leave the US only in Feb 14 - does this work ?

 

Personally, I prefer the "travel and come back on H4" option since even if we file for COS she will still leave for India in Feb '14 and come back in May '14 but obviously the issue is she will be out of status for ~2 months.

 

Finally, at the port of entry will she be asked regarding her outstanding H1 approval?

 

Any comments/help regarding this matter would be highly appreciated.

 

Regards

If she was not paid she is out of status from the day her H1B got approved as COS. Since she is out of status now it would be tough to get COS from H1B to H4. If she reported to her employer and was not paid then file a complaint against employer with DOL. Also, I hope you are aware that employer has to get her a one way air ticket to go back to home country. Make use of free ticket. Once she gets back on H4 at POE her H1B approval does not matter.

Link to comment
thedon Member

thedon

Posted
  • Author
Posted

If she was not paid she is out of status from the day her H1B got approved as COS. Since she is out of status now it would be tough to get COS from H1B to H4. If she reported to her employer and was not paid then file a complaint against employer with DOL. Also, I hope you are aware that employer has to get her a one way air ticket to go back to home country. Make use of free ticket. Once she gets back on H4 at POE her H1B approval does not matter.

 

 

Firstly she has up to 60 days to report. Secondly the employer who filed is on the hook. Having said that she can leave and return with a H4 visa. The POE Officer can ask anything and a truthful answer is expected. It is not likely the H1 comes within his domain and hence he will not ask.

 

Thank you very much for your thoughts. The bottom-line is, it's not entirely the employer's fault as well since the original job required slight relocation which wasnt possible by our family and he is willing to look for seperate projects till the end of 60 days. Since my wife hasnt made herself available for work (due to relocation) he will not be paying her for 60 days citing the above mentioned rule.

 

So in a scenario that he is not able to get new projects is it OK if my wife leaves for India in Feb and comes back in May on H4? Will she be out of status for 2 months (till she leaves US) or 4 months (till she comes back to POE on her H4). She will be dropping off her new I-94 when she leaves.

 

Finally, regarding my subject, I feel you agree that COS from the US is not required in her case since she is anyways travelling to India ?

 

 

Thank would be it - Thanks a lot for your time. I look forward to contributing to the forum with what I know.

Link to comment
jairichi Advanced Member

jairichi

Posted
Posted

Thank you very much for your thoughts. The bottom-line is, it's not entirely the employer's fault as well since the original job required slight relocation which wasnt possible by our family and he is willing to look for seperate projects till the end of 60 days. Since my wife hasnt made herself available for work (due to relocation) he will not be paying her for 60 days citing the above mentioned rule.

 

So in a scenario that he is not able to get new projects is it OK if my wife leaves for India in Feb and comes back in May on H4? Will she be out of status for 2 months (till she leaves US) or 4 months (till she comes back to POE on her H4). She will be dropping off her new I-94 when she leaves.

 

Finally, regarding my subject, I feel you agree that COS from the US is not required in her case since she is anyways travelling to India ?

 

 

Thank would be it - Thanks a lot for your time. I look forward to contributing to the forum with what I know.

She would be considered out of status from Oct 1st 2013. If you file a COS now it would be denied. She has to leave US asap and enter US with a valid H4 visa. She cannot wait till Feb.

Link to comment
thedon Member

thedon

Posted
  • Author
Posted

She would be considered out of status from Oct 1st 2013. If you file a COS now it would be denied. She has to leave US asap and enter US with a valid H4 visa. She cannot wait till Feb.

 

The H1B petition was approved in the first week of Jan'14. The I-94 also mentions that its valid from the first week of Jan'14 to 2016.

 

Is there any reason why you say she would be out of status from October 1st 2013 ? It was my understanding that if she leaves for India in Feb'14 it would be under 60 days and within her rights to not join the company.

Link to comment
jairichi Advanced Member

jairichi

Posted
Posted

The H1B petition was approved in the first week of Jan'14. The I-94 also mentions that its valid from the first week of Jan'14 to 2016.

 

Is there any reason why you say she would be out of status from October 1st 2013 ? It was my understanding that if she leaves for India in Feb'14 it would be under 60 days and within her rights to not join the company.

I apologize. I overlooked the date of H1B approval. Yes, she has 60 days to report to employer. If she travels before that and enters US on H4 visa she is fine.

Link to comment
h1toh4cos Newbie

h1toh4cos

Posted
Posted

My spouse has similar situation as well. We applied for COS in US from H1 to H4. But as we got to know that it's better to leave US, my spouse left US for INDIA. So, now scheduled H4 visa appointment in INDIA. Please advise, if there are any complications in issuing H4 to my spouse in India (H1 to H4 COS in US - We just received a receipt that this is the tracking number.. No decisions yet..)

Link to comment
jairichi Advanced Member

jairichi

Posted
Posted

My spouse has similar situation as well. We applied for COS in US from H1 to H4. But as we got to know that it's better to leave US, my spouse left US for INDIA. So, now scheduled H4 visa appointment in INDIA. Please advise, if there are any complications in issuing H4 to my spouse in India (H1 to H4 COS in US - We just received a receipt that this is the tracking number.. No decisions yet..)

No problem. It was wise from your wife's part to leave US. She would get her H4 stamped without any issue.

Link to comment
thedon Member

thedon

Posted
  • Author
Posted

My spouse has similar situation as well. We applied for COS in US from H1 to H4. But as we got to know that it's better to leave US, my spouse left US for INDIA. So, now scheduled H4 visa appointment in INDIA. Please advise, if there are any complications in issuing H4 to my spouse in India (H1 to H4 COS in US - We just received a receipt that this is the tracking number.. No decisions yet..)

I am confused- doesn't she already have a H-4 visa stamped in the passport when she came to the US?

Link to comment
thedon Member

thedon

Posted
  • Author
Posted

I apologize. I overlooked the date of H1B approval. Yes, she has 60 days to report to employer. If she travels before that and enters US on H4 visa she is fine.

Sorry, did you mean that she has to come back to US within 60 days from approval or just leave US within 60 days? currently she plans to come back in May 2014. Thank you.

Link to comment
thedon Member

thedon

Posted
  • Author
Posted

She can leave and return with the existing H4 visa.

 

 

yeah she came to US on H4. But, VFS hyderabad customer care is asking us to re-visit US consulate for visa stamping as my spouse has COS while in US.

 

Looks like contradicting statements. 'h1toh4cos' did the visa stamp expire and hence you need to get it re-stamped.

 

pontevecchio - are there any scenarios where you need to get the H4 re-stamped even if you have a valid stamp in the passport?

Link to comment
jairichi Advanced Member

jairichi

Posted
Posted

Looks like contradicting statements. 'h1toh4cos' did the visa stamp expire and hence you need to get it re-stamped.

 

pontevecchio - are there any scenarios where you need to get the H4 re-stamped even if you have a valid stamp in the passport?

I believe only when one has stayed beyond I94 expiry date (illegal stay) even though H4 visa is still valid need to go for new H4 visa stamping. I might be wrong.

Link to comment

Archived

This topic is now archived and is closed to further replies.

Go to topic listing