Stamping interview questions | H4 to H1 ##### Important / Help needed quickly #####


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Dear Friends,

I was on a H1B visa (Applied for it, after coming to US on a H4 visa) since 2008 without pay. Recently my employer declined when I requested to pay me so that I can use the pay stubs, to be able to transfer to other employer, as my visa is soon expiring. He also mentioned that I am still on H4 visa, as they've not 'ACTIVATED' the H1 visa. I have skimmed thru many forums, and arrived at an understanding there is nothing called 'ACTIVATING' a H1 visa, as the change of status to H1 from H4 is immediate once I receive the approval.

Now my attorney told that I need to travel to India and come back on a H4, as I am currently out of status as my employer didn't pay me so far.

I am concerned as, I am not sure what to answer if the consulate officer asks me about my out of status..

My questions are:

1) Would it be a good idea to file for a WH4 with the DoL when I am here in USA, and wait for the acknowledgment, before I go to an US consulate in India for a H4 stamping.

2) Alternatively, can I just apply and not wait for the acknowledgment, and go to the US-consulate in India, and show them the proof of my WH4 claim, if they ask me about out of status

and, last but not least..

3) Is there a concept called 'Activation' that I explained above exists? If so, what could be my answer in the consulate interview, for an Out of Status question, as my H4 expired somewhere in the 2008, and I was under the impression that I am on a H1B visa.

Any thoughts, and advise is greatly appreciated.

Thanks much.

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You are correct,there is nothing called activation.As soon as you got your H1,that itself means USCIS activated your new Status :)..If you plan to go back on to H4,it would make sense to file the WH4 on a fraud company and keep that filing proof for you Visa stamping.Your H1B is only valid if your employer hasnt cancelled it.So as long as you have a Valid H1B,your employer is legally bound to pay you...and you are in H1B status.

Good Luck.


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