H-1 to H-4 to H-1 query

[nikhilganu]

Hello to all,

 

I am currently on an H-1 B visa. My wife is also currently working full-time on an H-1B visa. Her visa (I-797 and visa stamp) is valid until August 2015. Her employer says that they cannot sustain her full time and they don't want to commit to a reduced hours H-1B either and intends to let her go. They said that she can continue working until Sept 30, 2013. Meanwhile, she has started looking for new jobs.

 

scenario 1: question : If she find a new employer who files an H-1 transfer before Sept 30, 2013, does she get out of status between Sept 30 and until she hears a decision on her H-1 B transfer? if she does, what is the solution?

 

scenario 2: question : if she can't find a new employer until Sept 30, 2013, she will obviously need to go on an H-4 status. How soon should we apply for it? Would she be in status between Sept 30 and until the H-4 application gets approved? If not, how do I handle this situation?

 

scenario 3: question: if she files for her H-4 and then finds a new employer who is willing to process her H-1 B, would it be an H-1 transfer or a new H-1 application? Can the H-4 and H-1 application's stay at the USCIS at the same time? What happens if the H-4 or H-1 gets approved before the other? Do I have to notify to cancel the other?

 

Any feedback would be very much appreciated.

 

sincerely,

Nikhil

[jairichi]

Scenario 1: As long as a new employer files a H1B petition and obtains a receipt number she would be considered in status. She could start working for the new employer based on receipt notice. But, it is always suggested to wait for approval and then work for new employer.

 

Scenario 2: If she can not find an employer by Sept 30th 2013, it is better for her to file a COS couple of weeks before Sept 30th 2013. She will be in status until her COS is approved or denied.

 

Scenario 3: If both COS to H4 and a H1B petition by a new employer is filed and waiting for approval, I believe you could withdraw your H4 COS application upon approval of your H1B application. The H1B petition is not subject to cap as long as she has not completed her maximum 6 years of stay in US. It would be better if she finds a new employer to file a H1B petition through premium processing.

[pontevecchio]

H1 transfer is always a new H1 application. She needs to get a COS from H1 to H4 with both your stubs to show valid status and get the receipt before September,30. Then she can wait for the time it takes to change status. If any employer wants to file her H1 petition she can do it by Consular Processing. Do not file multiple applications at one time.

[nikhilganu]

Thanks much for your feedback 'jairichi' and 'pontevecchio'. It is very much appreciated.

 

Pontevecchio: I am not sure if I understand this: "If any employer wants to file her H-1 petition she can do it by Consular Processing". What is different as far as requesting the prospective employer to ask to file her H-1?

 

Thanks.

[pontevecchio]

It is the same. If she has a pending COS to H4 and also a H1 sponsor filing her H1 petition at the same time the visa route is the way to go. Let me put it this way. If she is doubtful ogf getting the H1 visa for a H1 approval she should not be associating with such employers.

[KumarC]

Thanks guys. My wife is on H1 and she is on maternity break. She is on leave from Jan tillldate. She have decided not to go back to work and be a full time mom. We are planning for a India trip this november and planning to get H4 stamped. Will be it a problem when she goes fro H4 stamping? Is there any document that we need to carry to prove that she is on matenity break?

 

[pontevecchio]

6 months is too long. She should have changed status to H4 a long time ago. Talk to a Lawyer. She should be able to get the H4 visa if you are in valid status.