H1B processing & H4 extension together

[VijayMaddi]

Hi,

 

 

   My H1B visa & my spouse H4 visa validities are till september 30th, 2014.  

 

This year, my wife has applied for H1B visa and wanted to work from Mar/Apr 2015 (She wanted to have some delay till Mar/Apr 2015 due to the expected child birth )

 

 Currently her H1B petition is in processing (RFE state) so, before applying for H4 extension for my wife, Could you please clarify us the following queries:

 

a. Will it be legally fine to apply for H4 extension, when her H1B visa approval is still in progress ?

 

b. If her H4 VISA is approved first and then if she gets H1B Visa approved, what would be the impact and what will be her final status ? I mean does the COS turns to H1B automatically once it is approved ?  i.e Generally does the employer also file the COS while applying for  H1B

 

c. If her H1 visa is approved first and then if she gets H4 visa approved, what would be the impact and what will be her final status ? Can she be eligible to work ? Can she apply for the COS(change of status) from H4 to H1 in Mar/Apr 2015 ? How much time does this COS from H4 to H1 takes ?

 

d. Does she need to go back to india for stamping for COS to h1 from h4 ?

 

 

Please let me know your recommended way for my query

 

[jairichi]

 

Hi,

 

 

   My H1B visa & my spouse H4 visa validities are till september 30th, 2014.  

 

This year, my wife has applied for H1B visa and wanted to work from Mar/Apr 2015 (She wanted to have some delay till Mar/Apr 2015 due to the expected child birth )

 

 Currently her H1B petition is in processing (RFE state) so, before applying for H4 extension for my wife, Could you please clarify us the following queries:

 

a. Will it be legally fine to apply for H4 extension, when her H1B visa approval is still in progress ?

 

b. If her H4 VISA is approved first and then if she gets H1B Visa approved, what would be the impact and what will be her final status ? I mean does the COS turns to H1B automatically once it is approved ?  i.e Generally does the employer also file the COS while applying for  H1B

 

c. If her H1 visa is approved first and then if she gets H4 visa approved, what would be the impact and what will be her final status ? Can she be eligible to work ? Can she apply for the COS(change of status) from H4 to H1 in Mar/Apr 2015 ? How much time does this COS from H4 to H1 takes ?

 

d. Does she need to go back to india for stamping for COS to h1 from h4 ?

 

 

Please let me know your recommended way for my query

 

a. Yes.

b. If her H1B gets approved after her H4 extension approval then she will be on H1B status from Oct 1st. Normally in your spouse case employer would have filed COS to H1B.

c. COS from H4 to H1B has to be done by employer and pay H1B fee again. 3 to 4 months by regular processing and 15 calendar days by premium processing.

d. If COS is approved by USCIS then not required.

[VijayMaddi]

Thank you so much for your inputs...

[abs]

Hi,

I am in a vey similar situation.

 

My wife is on H4 and her current H4 expires on Sep 30th 2014. The I-94 however is valid until 10th Oct 2014. 

She has her H1 COS in process and still under initial review. Now, I am in the process of applying my H1 extension and her H4 extension. I have read about the last action rule, but my question is 

(1) Can I apply the extension using premium so that we have H4 extension done before the H1 COS takes effect. Would this be valid ? 
(2) Does having 2 applications in pending would create a problem ? 

Or should we upgrade the H1 COS to premium instead ? Please advise

[jairichi]

Hi,

I am in a vey similar situation.

 

My wife is on H4 and her current H4 expires on Sep 30th 2014. The I-94 however is valid until 10th Oct 2014. 

She has her H1 COS in process and still under initial review. Now, I am in the process of applying my H1 extension and her H4 extension. I have read about the last action rule, but my question is 

(1) Can I apply the extension using premium so that we have H4 extension done before the H1 COS takes effect. Would this be valid ? 

(2) Does having 2 applications in pending would create a problem ? 

Or should we upgrade the H1 COS to premium instead ? Please advise

Better upgrade your wife's H1B petition to PP.

[nielg]

I am also in the exactly same boat.I applied for my H1B in april 2014 by premium processing and it got approved on 7th may by COS .Now due to maternity reason I will not be able to start working form oct 1st oct.I have my H4 which is valid till 30th sept Rightnow I have decided to apply for H4 Extension and not to start working on H1B From oct.May be I will start working from feb -Mar 2015 period.

 

My question is..

1)Is it Possible to apply for change of status later on from h4-h1b when I want to start with the same employer  or my emploer will revoked my petition?or my  H1B pertion will get override?

 

2)How long will it take to apply for COS from H4 to H1B?Cost?

 

3)I have not yet received the document from my employer for my H1B except the mail for  approval notice for h1b. which is valid from oct.

will they hold my document?

 

 

 

 

 

[jairichi]

1. By law an employer has to revoke petition if you do not work for them. However, this will not affect any future H1B petitions filed by prospective employers.

2. 3 to 4 months by regular processing and 15 calendar days by premium processing. Cost is irrelevant to you as it is paid by employer.

3. You can request your employer a copy of your I797.

[nielg]

1. By law an employer has to revoke petition if you do not work for them. However, this will not affect any future H1B petitions filed by prospective employers.

2. 3 to 4 months by regular processing and 15 calendar days by premium processing. Cost is irrelevant to you as it is paid by employer.

3. You can request your employer a copy of your I797.

 

 

ch in case I want to start work or is there any way he could still continue my h1b without revoking?Because I will again have to go through the quota and file new h1b which is quite tidious because of lottery and all.

 

2)COS also take 3-4 months to convert H4-H1B?

 

3)If the employer decide to revoke the petition will I get to know the same /is there any way I can track it-In that case what is the use of I-797?

[jairichi]

ch in case I want to start work or is there any way he could still continue my h1b without revoking?Because I will again have to go through the quota and file new h1b which is quite tidious because of lottery and all.

 

2)COS also take 3-4 months to convert H4-H1B?

 

3)If the employer decide to revoke the petition will I get to know the same /is there any way I can track it-In that case what is the use of I-797?

1. Once you are counted against cap there is no need to go through quota again till you use your max allowed stay of 6 years on H1B.

2. Based on current USCIS processing timings.

3. You can check the status online in USCIS website. For a future cap exempt H1B filing you would need to provide your new employer a copy of your I797 to show that you are counted against cap.

[nielg]

1. Once you are counted against cap there is no need to go through quota again till you use your max allowed stay of 6 years on H1B.

2. Based on current USCIS processing timings.

3. You can check the status online in USCIS website. For a future cap exempt H1B filing you would need to provide your new employer a copy of your I797 to show that you are counted against cap.

oh ok.Just the last question

 

Do you mean though my employer decide to revoked my current h1b petition which is approved,and I f I have the copy of I-797 New employer can file new without going through quota.or once the petition is revoked I will have to file complete new h1b against new quota?

 

if I have the approval notice sent by USCIS in email and not the copy of I-797 will it work?

[jairichi]

Yes, you are not subject to quota when a new employer files a H1B petition. Any evidence to show that you are counted against cap once is enough. So approval notice by mail should be enough.

[nielg]

Yes, you are not subject to quota when a new employer files a H1B petition. Any evidence to show that you are counted against cap once is enough. So approval notice by mail should be enough.

 

 

Thank you so much for your time and quick response !!I do appreciate your help on this !!

 

processing fee for H4 transfer is just around $300 ..But for H4 To H1B do I need to pay the full fees once again In case my employer not ready to pay...I know legally employer should pay the processing fee..But how much it cost to transfer H4-H1B

By COS?

Is it like new H1B only though H1b is already approved and we are just applying for COS for the approved petition.

[jairichi]

Thank you so much for your time and quick response !!I do appreciate your help on this !!

 

processing fee for H4 transfer is just around $300 ..But for H4 To H1B do I need to pay the full fees once again In case my employer not ready to pay...I know legally employer should pay the processing fee..But how much it cost to transfer H4-H1B

By COS?

Is it like new H1B only though H1b is already approved and we are just applying for COS for the approved petition.

It is against law to pay for H1B. COS from H4 to H1B will incur the same fee like a new H1B.

[nielg]

It is against law to pay for H1B. COS from H4 to H1B will incur the same fee like a new H1B.

Thanks so much !!

[nielg]

Thanks so much !!

I just get in touch with my employer today and they are saying As I have applied for h4 extension my H1B status will be invalid.

H1B validity will start from oct 1st 2014 and incase h4 extension decision will come after that my H1B

[nielg]

1. Once you are counted against cap there is no need to go through quota again till you use your max allowed stay of 6 years on H1B.

2. Based on current USCIS processing timings.

3. You can check the status online in USCIS website. For a future cap exempt H1B filing you would need to provide your new employer a copy of your I797 to show that you are counted against cap.

 

 

oh ok.Just the last question

 

Do you mean though my employer decide to revoked my current h1b petition which is approved,and I f I have the copy of I-797 New employer can file new without going through quota.or once the petition is revoked I will have to file complete new h1b against new quota?

 

if I have the approval notice sent by USCIS in email and not the copy of I-797 will it work?

 

Thanks so much !!

Today I get in touch with my employer and they are saying as I have applied for h4 extension my H1B will get cancelled after 1st oct.

 

As H1B validity is from 1st oct 2014 And if decision on H4 extension comes after 1st oct. my h1 status will be no longer exist as per the last action rule.Also there is no cap exempt for such case I will have to go through the fresh quota next year.

Are they correct?

 

My H4 is valid till 30th sept 2014 but due to maternity reason I dont want to continue work  from 1st oct 2014 and thats the reason I files for my H4 extension,but if this is going to cancel my H1B permanently will it be recommendable to withdraw the h4 extension and file it after 1st oct?

 

As per the last action rule  USCIS consider the petitions  last approval date or last effective date?

and as per that if I have my h4 valid till 30th sept .new H4 Effective date will be from 1st oct only-Again confused if for both H1 and H4 have the same effective date which status would be taken in to consideration as a final by USCIS.

 

 

I would truly appreciate your help on your comments for my above concern.Please respond ..Thanks In advance.

[jairichi]

Your employer is partly correct. The last action rule is correct. But if you are cap counted and petition is approved all your future H1B petitions are cap exempt till you reach your max allowed stay of 6 years on H1B.  When did you apply for H4 extension? If you applied a couple of weeks back it is highly unlikely that it will be approved before Oct 1st as it takes 3 to 4 months to get approval. The effective date will be the date your petition is approved by USCIS.

[nielg]

Your employer is partly correct. The last action rule is correct. But if you are cap counted and petition is approved all your future H1B petitions are cap exempt till you reach your max allowed stay of 6 years on H1B.  When did you apply for H4 extension? If you applied a couple of weeks back it is highly unlikely that it will be approved before Oct 1st as it takes 3 to 4 months to get approval. The effective date will be the date your petition is approved by USCIS.

Thanks a lot For the valuable feedback provided!!I greatly appreciate your help on my concern.

 

I did check with USCIS and they are saying if h4 get approved after 1st oct i.e the effective date for h1b.my h1b will no longer exist -I checked twice and the lady was saying in that case COS will not be available in future for H1B,as H4 will be the only valid status.

 

So most probably I am thinking to withdraw my H4 -so that H1B will be effective from 1st oct.

 

Is that ok if I apply for COS on 1st or 2nd oct once H1B get effective ?

 

will I get a option of COS from H4 to H1B later in future?

 

In case my husband h1b extension not approved till that time like till the 1st week of oct.Will he be able to apply for my dependent -H4?

 

Is it ok if we directly change the status as soon as H1B get effective -Because I dont want to take any payslip from my employer as I would not be joining on 1st oct because of maternity reason,and for COS I will require that-Please correct me If I am wrong somewhere.

 

Thanks once again !!

[jairichi]

Thanks a lot For the valuable feedback provided!!I greatly appreciate your help on my concern.

 

I did check with USCIS and they are saying if h4 get approved after 1st oct i.e the effective date for h1b.my h1b will no longer exist -I checked twice and the lady was saying in that case COS will not be available in future for H1B,as H4 will be the only valid status.

 

So most probably I am thinking to withdraw my H4 -so that H1B will be effective from 1st oct.

 

Is that ok if I apply for COS on 1st or 2nd oct once H1B get effective ?

 

will I get a option of COS from H4 to H1B later in future?

 

In case my husband h1b extension not approved till that time like till the 1st week of oct.Will he be able to apply for my dependent -H4?

 

Is it ok if we directly change the status as soon as H1B get effective -Because I dont want to take any payslip from my employer as I would not be joining on 1st oct because of maternity reason,and for COS I will require that-Please correct me If I am wrong somewhere.

 

Thanks once again !!

My suggestion for you would be is to report to employer for a week or two from 1st Oct. After generating one pay stub resign and apply for COS to H4.

 

Do talk to a good attorney as I am hearing it new from you that even though one is cap counted and one does not join employer and move to a different status one has to go through quota again.