H4toH1B - Going out of country

[skramkumar]

Hi

My wife is currently in H4 visa (valid until Dec 2014) and got selected in the H1B lottery this year. Consider the H1B is approved by July 2013. We need to travel to India for some personal reasons in Sep 2013 and will be returning back in end of Sep 2013.

1. Do we need to go for stamping in India for the new H1B approved which will be effective Oct 2013?

2. Can she come back to US with the valid H4 Visa which she currently has? Do we need to apply for COS in this scenario?

3. How riskier to travel in this scenario?

Highly appreciate your answers here!!

Thanks!!

[pontevecchio]

1. Assuming the H1 petition with COS is approved before she leaves the country she is able to come back in H4 status and convert automatically to H1 status from October,1. Why is there a need to avoid the H1 visa? since she is coming back late in September?

2. See 1.

3. What is the basis for your question about risk? Is it a legitimate business or not? If so no extra risk.

[Attorney_25]

The stated USCIS policy is that the "last action rules," and where a person has an H-1B petition (change of status) approved for an October 1 start date, then travels after the approval and re-enters the US before October 1, the last action is "the taking effect" of the H-1B petition on October 1, which supersedes the previous status. It is not clear, however, if the USCIS databases will properly reflect the H-1B status on October 1 if there is intervening travel. There is a risk that USCIS policy can change, and this succession of events is not made clear in the laws and regulations, but so far to my knowledge nobody has had a problem relying on this USCIS policy.

If a person travels while a change of status to H-1B is pending, the request for change of status is considered abandoned and USCIS may approve the petition but has the discretion to deny the change of status. If the change of status is denied, the person needs an amended petition filed to put him into H-1B status, or needs to travel out of the US, obtain a visa, and re-enter on the H-1B visa.

[skramkumar]

Thanks for your response!!

The reason i do not want to go for H1 stamping in this visit is we do not have ample time to go for stamping during this trip.

Can she come back in H4 visa and start working from Oct 1 2013 with the H1B visa withour any issues. It would be great if you can confirm this.

[pontevecchio]

Good save. Assuming she has her H1 petition with COS approved she can come back in H4 status before the start date and the H1 will kick in from October,1. One way to be more sure is to make sure the I94 numbers are the same.

[skramkumar]

Thanks again!!

Could you explain a bit on the I94 numbers which you stated above? We will be getting an I-94 in port of entry while returning back on Sep 2013. Does this match with the I 94 in I797 that we will be getting for H1b?

[Attorney_25]

No, the I-94 numbers are not required to be the same. She will be issued a new I-94 with a new number when she re-enters the US.

[skramkumar]

No, the I-94 numbers are not required to be the same. She will be issued a new I-94 with a new number when she re-enters the US.

Thank you!!