H1b to H4 vonversion

[skeesara567]

Hi,

My wife is on H1B visa and she wasn't able to find a job from last 3 months and her payroll wasn't run for the last 3 months. Now I want her to convert to H4 visa. She has also plans to travel India.

She came to US on H4 visa and converted to H1B visa. she still have valid H4 visa stamping till Jan 2014.

1. Do I need to file Form I-539 to USCIS for H1b to H4 conversion? If so how long it takes ? who should initiate the process her employer or her self?

2. Can she travel back to USA on the existing H4 visa with out attending Consular interview in India?

3. If she can travel on the H4 visa (currently valid) to USA what type of information we need to provide at the Port of Entry?

Answers to my questions are highly appreciated.

[0407]

Hi,

I was in similar boat. My Wife's H1B COS was approved on Jan 12, 2013. She didn't want to join the employer.

I had consulted a well known attorney. She asked me to file H1B to H4 COS ASAP. (My wife too entered

US on H4 and was on H4 when H1B cos was applied). I filed H4 COS (I 539) and USCIS received it on

Feb 11, 2013. It got approved two days ago.

This is what I learnt from attorney when I consulted. You have until 60 days to join the employer. If COS

to H4 is filed within 60 days one should be fine. But recommendation is to file it ASAP.

Other option attorney had told us is to go out of country and enter back on H4. (previously approved

H4 is fine.) Since you are beyond 60 days... I guess it makes sense to exit and enter back.

Hope this helps you.

[rahul412]

Every first thing to do, file a complaint against the employer for not paying the employee for three months, bcos not getting paid on H1 is nothing but that person is out of status during that time. That will be helpful in future if she wants to go back to H1,

[wiweq]

"My wife is on H1B visa and she wasn't able to find a job from last 3 months and her payroll wasn't run for the last 3 months. Now I want her to convert to H4 visa. She has also plans to travel India."

=> You are missing something here. As she is on H1b visa, she DOES have a job here. Because she is not getting paid she is out of status. Now is she goes for H4 stamping, she would be asked for the proof of status during the last stay in USA. She would have to show last 3 months paystubs to get the H4. If she stays 3 months more out of status, she is all set for 3 years ban to enter in USA.

In order to get things fix, she needs to file a complaint against her employer using WH4 form, and call to ICE. Once she gets the WH4 acknowledgement, she has better chances to get the H4 stamping.

Remember, you fail to report, you are partner in crime.

[skeesara567]

Hi,

I was in similar boat. My Wife's H1B COS was approved on Jan 12, 2013. She didn't want to join the employer.

I had consulted a well known attorney. She asked me to file H1B to H4 COS ASAP. (My wife too entered

US on H4 and was on H4 when H1B cos was applied). I filed H4 COS (I 539) and USCIS received it on

Feb 11, 2013. It got approved two days ago.

This is what I learnt from attorney when I consulted. You have until 60 days to join the employer. If COS

to H4 is filed within 60 days one should be fine. But recommendation is to file it ASAP.

Other option attorney had told us is to go out of country and enter back on H4. (previously approved

H4 is fine.) Since you are beyond 60 days... I guess it makes sense to exit and enter back.

Hope this helps you.

Thanks for the information. This really helps me. One last thing, she is going to India this March, she has a valid H4 visa stamping. Can she enter US on that visa OR She has to get a new H4 stamping again by attending consular interview in India.

Thanks,

[JoeF]

Hi,

My wife is on H1B visa and she wasn't able to find a job from last 3 months

On H1, she HAS a job, with her employer.

and her payroll wasn't run for the last 3 months.

On H1, she needs to get paid ALL THE TIME. And the employer knows it.

She needs to file a complaint with DOL on form WH4. The DOL will make the employer pay her.

[0407]

Thanks for the information. This really helps me. One last thing, she is going to India this March, she has a valid H4 visa stamping. Can she enter US on that visa OR She has to get a new H4 stamping again by attending consular interview in India.

Thanks,

I have known people who didn't join the employer. They were originally on H4 and after COS to H4 never joined the employer.

They stayed in US for more than a year, went for H4 stamping (because h4 stamping had expired and not for any other reason)

and then came back on H4. I sincerely suggest you consult an attorney. A qualified one at that. I have gone through the trauma

of "what to do" and searched around forums for answers. it is not worth it. 200$ for a consultation is better than the immigration

trauma.

[wiweq]

"I have known people who didn't join the employer."

=> Just because you know some people who didn't follow the law doesn't mean to suggest someone to do the same.

Gone were the days when people misused the regulations and cheated the immigration system.

Once again, not getting paid on H1b makes you out of status. 6 months of out of status awards 3 years ban to enter in the USA.

[skeesara567]

Hi,

My wife is on H1B visa. Now I want her to convert to H4 visa. She has also plans to travel India.

She came to US on H4 visa and converted to H1B visa. she still have valid H4 visa stamping till Jan 2014.

1. Do I need to file Form I-539 to USCIS for H1b to H4 conversion? If so how long it takes ? who should initiate the process her employer or her self?

2. Can she travel back to USA on the existing H4 visa with out attending Consular interview in India?

3. If she can travel on the H4 visa (currently valid) to USA what type of information we need to provide at the Port of Entry?

Answers to my questions are highly appreciated.

[0407]

> Just because you know some people who didn't follow the law doesn't mean to suggest someone to do the same.

Gone were the days when people misused the regulations and cheated the immigration system.

Once again, not getting paid on H1b makes you out of status. 6 months of out of status awards 3 years ban to enter in the USA.

@Wiweq

I appreciate your penchant for law abiding and your respect for the law. But request you to read my post completely. I was suggesting

him to consult an attorney. I was merely saying that people have done whatever I described. In previous post I did tell him that

I myself filed COS to H4 for my wife ( again, I guess you were among the others who recommended that)

All that I am telling is I have seen people who haven't filed for H4 even after H1B cos when they didn't join the employer.

So may be law allows it, may be law doesn't. Qualified immigration attorney would know better that anyone or all of us

here.

I need to convey to you that my intentions are as honest as that of yours, and just like anyone here, I post based on what

I have seen and what I have done.

Hope this clarifies.

[wiweq]

"All that I am telling is I have seen people who haven't filed for H4 even after H1B cos when they didn't join the employer.

So may be law allows it, may be law doesn't. Qualified immigration attorney would know better that anyone or all of us

here. "

=> If H1b is approved with COS, your status is now H1b and to be in legal status you have to maintain employer-employee relationship and get paid regularly. What is special here that may be missing? It's quite simple. You failed to maintain the status, you are out of status. Once H1b is approved, your above said relationship starts and it's your job to maintain it.

[0407]

"All that I am telling is I have seen people who haven't filed for H4 even after H1B cos when they didn't join the employer.

So may be law allows it, may be law doesn't. Qualified immigration attorney would know better that anyone or all of us

here. "

=> If H1b is approved with COS, your status is now H1b and to be in legal status you have to maintain employer-employee relationship and get paid regularly. What is special here that may be missing? It's quite simple. You failed to maintain the status, you are out of status. Once H1b is approved, your above said relationship starts and it's your job to maintain it.

Wiweq,

I am not all contesting your inference or advice you have given. I am just letting you know that I was not

asking him to do something illegal. I was telling him people have done it and I have not. it makes sense

to contact an immigration attorney

[Attorney_25]

It is not correct that 6 months out of status creates a 3 year bar. It may be useful to learn the difference between "out of status" and "unlawfully present." "Unlawfully present" gerally only refers to times during which there is no unexpired I-94. So for a person with an H-1B I-94, they do not become unlawfully present until the I-94 expires. Even so, a person who is out of status could be removed from the US if the US government decided to take action.

It is also not technically correct that a person has 60 days to start working in H-1B status when status is changed to H-1B in the US. The regulation applies to how long the employer has to start employing the employee, and even then there are exceptions that could either shorten or lengthen that period. The reality is each day after COS to H-1B before the employee is hired by the employee is a day out of status. Days not working AFTER hire is a different matter, and may or may not be considered out of status.

Generally, the H-4 visa is valid until expired (except in the rare instance where it might be canceled) and can be used for multiple trips into the US as long as the holder has a spouse properly working in H-1B status. It is not employer-dependent, i.e. it's ok if the H-1B spouse changed jobs.

[G Prabhu]

Hi,

Here is my currrent scenario

a. I came on H4 to US in Sept 2015. My Spouse changed the employer after my arrival along which my H4 i-94 was also extended and is valid till Oct 2018.

b. I applied for H1 which is approved and I received i797B though I applied for change of status while applying for new H1.

• How is the procedure now? Should we re-appeal for H4 to H1 conversion?
• How along does it take?
• I hope I am still on H4 status or am I out of status. I have not traveled out of country while H1 was under process.