H4 - H1 Travelling in the meantime

[MinaxiMayank]

Hi,

I live in US on H4 visa. I've applied for H1B this year and it is still on Initial review. We've booked our tickets to India for 12th Oct, 2012 and return is on 7th Nov, 2012. My lawyer said that it is safe to go to India and come back on H4 and after coming back, I can change my status from H4 to H1 (if it gets approved). But I did some research on the internet and almost everyone said that one should not leave the country when the visa is in pending stage because it gets void and denied and even after the approval, I should come back before 1st Oct. I am really confused what should I do. I've been trying for the H1 visa from last 5 years and do not want to blow this opportunity that I've finally got.

Could anyone tell me:- 1) If I can leave the country while my H1B is on intial review?

2) If I get approval while I am in India, I can enter the country on H4 and do the change of status from H4 to H1 after coming back.

Thanks a lot in advance!!!!

[pontevecchio]

1. Yes 2. Yes if your employer will file the H1 with COS again and get it approved. On the other hand he may want you to leave and come back with a H1 visa.

[MinaxiMayank]

Thanks for the prompt response.

I've one more doubt regarding the second question. I talked to my lawyer and he said that in my case my COS will not take place from Oct 1st automatically, instead whenever I'll join my employer then only my status will change from H4 to H1. So, my question is: Does my employer still need to file my H1 again?

Thanks in advance!!!!