H4 to H1 Change of status - effective date vs start date

[rpasuma]

When applied for change of status from H4 to H1, what is the rule about the start date of employment.

Is it mandatory that the applicant join the job as per the start date in i-129 or can the applicant join with certain time frame. In case applicant didn't join the job as per the start date in I-129 /I-797, what are the implications on the status of the applicant.

for example effective date on i-797 is Nov 1st 2011, but job joined on Dec 1st, 2011. there is no payroll on November. In case, if this is an issue, how can we manage when we go for stamping.

Thanks

[Attorney_10]

Generally, the H1B beneficiary must begin work upon the start date of the H1B petition approved with a change of status. Failure to do so could cause the beneficiary to violate his/her H1B status. Please schedule a consultation with a qualified immigration attorney to discuss the specific facts relating to your case.

[wiweq]

"for example effective date on i-797 is Nov 1st 2011, but job joined on Dec 1st, 2011. there is no payroll on November. In case, if this is an issue, how can we manage when we go for stamping."

=> COS means your H1b status has been started from Nov 1st, 2011. Now, you need to maintain this H1b status by working for H1b employer and getting paid every pay cycle. You failed to get paid after Nov 1st 2011; you failed to maintain your H1b status i.e. you are out of status.

[rpasuma]

Thnaks for the replies..Can someone suggest any remidial actions that can be taken especially for the purpose of stamping. Has anyone come accross this kind of situation. If employer provides a letter with reasonable explanation as to why there was a delay in joining date, does it work ?

Thanks

[rpasuma]

Is there a remidial action that can be taken, easpecially from the stamping perspective. Is it sufficient if employer provides a letter to consulate stating the reasons for the late start etc..has anyone gone through this situation. please advise.

Thanks

[wiweq]

"Is there a remidial action that can be taken,"

=> You can take a letter from employer stating the reasons, but I don't think its gonna work.

There are two things that can work in your case:

1. Your employer pays you from the date of H1b start date.

2. File a complain against your employer using WH4 on your state's DOL site.

Remember, ignorance of the law is never an excuse in USA.

All the best.

[pontevecchio]

There is no issue here. You took the one month to settle your affairs and then join. If one is present in the USA he is allowed up to 60 days to report as long as the employer is not forcing him to wait. Once he reports the obligation to start payment even on bench, starts. I would suggest you get specific help from a Good Law firm in your area dealing with Immigration. Why would you trust the fickle and often improper advice from a forum in important matters? Spend some money.

[wiweq]

There is no issue here. You took the one month to settle your affairs and then join. If one is present in the USA he is allowed up to 60 days to report as long as the employer is not forcing him to wait. Once he reports the obligation to start payment even on bench, starts. I would suggest you get specific help from a Good Law firm in your area dealing with Immigration. Why would you trust the fickle and often improper advice from a forum in important matters? Spend some money.

What you said may be true for H1b extension (transfer). This is the case of COS (from H4 to H1b). Attorney_10 has also said that OP HAS to start working from the date given in I129. Once the COS happened on the date given in I129 the H4 will be gone. Now either maintain H1b or be counted as OOS!

[mabansal]

hi,

My wife was on H1 and she changed her status from h1 to h4 and then she got a new job and applied her H1 and and COS, We got the approval now however still the joining date is 1 month from now. Can we wait for one month to join or what are our options? Please help in this regard.

Thanks

[wiweq]

hi,

My wife was on H1 and she changed her status from h1 to h4 and then she got a new job and applied her H1 and and COS, We got the approval now however still the joining date is 1 month from now. Can we wait for one month to join or what are our options? Please help in this regard.

Thanks

What is the date mentioned on I797. It should have start date of the H1b. You are obliged to work from that day for the employer.