Will My wife's H1B will get cancelled if she comes to US on H4 ?

[aaycee]

Hi,

I am on H1B and I applied for my wife's H1B this year (2016). She got an RFE and her employer will respond to RFE in January 2017. My wife had to visit her parents in India. My concern is that if my wife will return in February 2017 and by that time if her H1B got approved, then can she come back on H4 without her H1B getting cancelled or any problem to it ?

Thank you

[JoeF]

First, you didn't apply for her H1. A prospective employer applied.

Second, if she is abroad, the H1 can't be approved as COS. If she enters with her H4 visa, she would be in H4 status. To work, the employer would have to file and pay for a new H1 petition with COS or she would have to go abroad and get an H1 visa.

If the H1 is approved while she is in the US, her status would likely change to H1 and she would have to start working for the employer. If it is not approved as COS, the info above applies.

[aaycee]

Thanks for the reply !! and yes you are right that I didn't apply, her employer applied for her H1. So, does that mean if she will be in India for next two months, her H1 won't get approved till then ? I mean she won't even get approved petition ? Will her H1 gets rejected if she will stay in India ?

Thank you !

[JoeF]

When the H1 is approved is independent of where she is.

I said *IF* the H1 is approved while she is abroad... The H1 could get approved while she is abroad. *IF* it is approved while she is abroad it can't be COS.

[aaycee]

Thank you so much JoeF ! One last question, if my wife's H1 gets approved when she is in India and she comes back on H4, can her employer use the same approved petition to get her on H1B job ? or she will have to go outside the country and get a visa stamped first ?

[pontevecchio]

In that case , either the employer will need to refile her H1 petition with COS from H4 with all the costs involved and get it approved first OR she can leave and return with the H1 visa.