H4 to H1

[jay_jerseycity]

a. My wife got H4 stamping done (when I was employed with Employer "X") with validity until 2014. She was in India during that time and I was employed with employer "X" in USA.

b. After few months I changed my employer from “X” to new employer “A” and recently when I went to India I got my H1B stamping done with my current employer “A”. (We didn’t got my wife H4 stamping again since my new employer’s legal team suggest it’s not required for her to get stamped as she already has valid Visa and if expired then we can file for extension for her separately. They also said: dependent is tie to the primary Employee and not Employer of the primary Employee.

c. Then we together come to US on H1B - me (my current employer “A”) and H4 - her (previous employer “X”) without any issues.

d. Now, we have got a job offer for my wife and they are ready to sponsor new H1B in 2013 cap with CHANGE OF STATUS from H4 to H1B.

The Point is: What should we do? As:

1) My wife’s prospective Employer is saying she needs to get the H4 stamping based on my current employer. Reason (What if my pervious employer ‘X’ had cancelled my pervious petition. In that case she doesn’t have an Active H4 status in USCIS database. Although she has entered legally with valid visa and has valid I-94 as

well. (Meaning My wife should be tied to my current employer)

I am totally confused by comments from both the side. And legally both arguments make sense to me.

What should be my plan of action?

1) Should I file H4 for her first with my current employer some I-539 doc and wait which might take lot of time and we might lose the job offer …

2) OR just go out of country and then get the stamping done for her with my currently employer’s “A” supporting documents.

I would really need some help on this. Please.

Thanks for all of your input..

[rangadu]

If your wife has a valid I-94 and if you have a valid I-797 and I-94 with your current employer, you can just apply COS. Your wife's prospective employer is most likely wrong, H4 is not tied to employer. If they dont agree, get legal opinion with an immigration attorney and present it to them.