India Travel plans after H1 and COS(H4 to H1) approval and Petition Start Date

[deepikaggupta]

I am looking for an urgent and critical legal advice related to my husband’s H4/H1 visa processing. I am working in US on H1 status. My Husband will be having H4 visa by 17 Jan. We are planning his travel to US in month of March so that he could look for employer who could sponsor his H1 work visa under 2014 quota. He will be coming to US on 1 -2 months leave from his current employer in India. As he doesn’t want to sit idle and would like to go back to India at least to complete his tenure with the company, we are looking for legal guideline for the intervening international travel. Below are the 2 options we could figure out as of now.

1. Assuming he gets his H1 with COS approved via premium processing by April/May, his approval notice will have start date of Oct 1 or later. Is it okay to travel outside US on H4 after approval notice is being received with COS approved and before petition start date (which is typically oct 1) . We are thinking of his return on H4 before start date of approval notice. Eg: H1 approval received on May 2, He travels back to India on H4 on May 15 and comes back to US on H4 on Sept

• Will this make approved petition as void?
  
• Will there be any problems with reentry or I94 on H4 ?
  
• Approved Petition will have Old I 94 Number in it and he will get new I 94 at POE. Does having different I94 number in this case would affect? Or I 94 on approved petition will hold validity starting Oct 1?
  
• Want to know is USCIS last action rule allows this or not?
  

We are thinking of this to avoid visa stamping for some time.

2. What if we apply for new H1 B petition without COS. After approval is received, he travels between India and US on H4 after approval and before approval start date. Will that jeopardize his H1 B petition or work authorization? Do we have option to apply for COS after he comes back? Is there any major risk involved?

I would really appreciate your advice and feedback on this as this is very critical for us.

[deepikaggupta]

My Basic question is: If person re enters US on H4 after Approval and Before Petition start date, will COS be still valid? Or does change in I 94 number ( One which is given with H4-> h1 Approval, another at port of entry) will make COS as invalid? Can we avoid stamping by doing this?

[pontevecchio]

Yes. Usually the I94 number will be the same. When you apply for a COS the approval comes with an I94 which will be usually the same as the previous H4 I94 and on coming back the H4 I94 will have the same number. It does not matter if it is different. Is it not possible for you to influence your company to sponsor his H1?