After H1 processing traveling from US

[ramesh.bhukya]

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.

[pontevecchio]

Visa avoidance is not in his interests . Have him visit multiple times if necessary in H4 status and check out the job scene. If he finds an employer have them file with CP and he would get the visa at the appropriate time and come back. Till then he needs to maybe hold on to the current job. Presumably if you can get a H1 sponsor so should he be able to. Why not have your company sponsor his H1?

[t75]

Why are you afraid of visa stamping? That makes it seem like either he is unqualified or he intends to work for a suspicious employer. In spite of what you have heard, the USCIS stamping is not to deny legitimate, qualified workers but to filter out the frauds.

Stop looking for ways to skirt the system and just have him do the right thing.

[deepikaggupta]

On Similar lines, its not about skirting the system but avoiding situations of H1 rejection especially when done through consultancy firms. Does Traveling after H1 Approval and before petition start will make COS as invalid? does change in I 94 numbers ( H1 approval, Port of Entry I 94) will make H1 approval and COS invalid?

[chakrakr]

It should work. Check this http://www.murthy.com/2005/05/06/travel-after-change-of-status-approval-with-future-start-date/

I suggest you consult an Attorney.

[girmaji]

Hi,

I am also in exactly same situation like the one posted above.

I too need clarification on travelling out of US after H4-H1 COS is approved.

I couldnot able get a conclusion after going through the link http://www.murthy.co...ure-start-date/

Does it say, it is legal to travel outside of US after H4-H1 COS is approved and return back to US before Oct 1st?

I am confused.

Members, please clear my doubt on this which would help me plan my future.

Thanks in advance.

[deepikaggupta]

Hope below response from one attorney helps:

If the Service approves a change of status petition/application, e.g., from H-4 to H-1B, valid as of a future date, the beneficiary may properly leave the United States and return before that date in the original classification, Your husband can re-enter the United States prior to October 1, 2013 in H-4 status with an H-4 visa, even with an approved COS petition, but he will need to obtain an H-1B visa after re-entering the United States after October 1, 2013. Under these conditions, it is very important that your husband does not enter the U.S. with his H-1B I-797 approval notice since it is not valid until October 1, 2013. Of course, travelling while a Change of Status is pending will be considered abandonment of the change of status, and your husband will need to apply for an H-1B visa and enter the U.S. based on this visa in order to hold H-1B status.