Urgent: H4 to H1B transfer Last Minute

[Dblue]

Hello Seniors,

I lost my job in 02/2018 so I filed I-539 to transfer to H4 on 03/30/2018 before my 60 day grace period ended and the application is still pending. Now I have found a job and my new employer wants to file my H1B. Talking to my attorney he suggests that I leave US and go for visa stamping because that will invalidate my pending H4 application and they will file my H1B as a consular notification that means that it will be a fresh H1B and not change of employer.

My question is:

1. My visa from my past employer is valid until 04/2019. Do I need to go for visa stamping or can I come back to USA with my previous stamp and new I-797?

2. Do I have to go to India or can I go to any other country?

Is there any other option available to me?

 

Please let me know soon as I have to make my travel arrangements. 

 

Thank you,

[pontevecchio]

1. Why did you not tell him about your current visa? Run it by him. You should be able to use it.

[Dblue]

I told him and he told me that since it is not a change of employer but a new H1B, visa stamping is required. I just want to find out if this is something has experienced before.

[pontevecchio]

Is it a lawyer or just a man dealing with immigration at the Office? It is possibly a matter of semantics. Unless your H1 visa is cancelled for being out of status, you can absolutely use the visa. Email the relevant Consulate and state that you have an existing H1 visa and a change of employer and could you use this visa to return?

If you have taken the trouble to read the FAQ,s at any Indian Consulate about visas, they specifically mention that you can use an existing visa with a new employer. Once you return, let the ignorant one know that he was wrong.

""Q.13 I have a valid H1B visa which contains my previous petitioner’s details. I have changed my employer with valid I-797 and am back in India for a short trip. Can I travel back to US on the same visa or do I need to apply for a new visa?

If you have changed H1B employers in accordance with USCIS procedures for making such a change, you may continue to use your valid H1B visa issued for your previous employment for entry into the United States. Upon applying for entry, you must also present your new Form I-797, Notice of Action, demonstrating the approval of the change of employer.""

http://www.ustraveldocs.com/in/in-gen-faq.asp#qlistwork13

[Dblue]

It is a immigration attorney. He said that in a change of employer situation you can rely on the old visa stamp. But in my case we are requesting new grant of status, so we can't rely on the old stamp. Do you agree?

[pontevecchio]

It is still immaterial. As long as the H1 visa is not revoked for fraud or for overstaying your permitted stay, you are able to use it. Are you saying you are not changing employers?

If it is the case that you have your own lawyer who you pay to represent you, you should not second guess him in a forum.