H4-H1B Change of Status on Maternity Leave

[nandinisaiom]

I am currently on H1B visa with a desi consulting firm ‘A’, working on E-V-C model with a retail client in IL. I am expecting a baby and the expected due date is: Nov 28th 2013. I will be going on Maternity leave (FMLA) for 3 months from Dec 1st 2013 to Feb 28th 2014. After the Maternity Leave, I am planning to visit India for 2 months with the new born baby from March 1st 2014 till April 30th 2014. While in India, I will be going for H4 visa stamping based on my husband H1B  visa and will enter USA on H4 visa as it is going to be difficult for H1B visa stamping with a desi consulting firm. As I will be Cap-exempt, I will have my Employer apply for COS (Change of Status) from H4-H1 immediately when I am back in USA. 

My questions: 

1.Can the H4-H1 COS be filed immediately once I am in USA or will there be going to be any wait time (as 1-2 months) before the H4-H1 COS can be filed as USCIS might think that I am defeating the purpose of H4 visa and misusing the H4 visa just to enter USA and filing for H4-H1B COS rather than going for H1 visa stamping in India. If USCIS thinks like that, they may approve my H4-H1 COS as Consular Processing (without an I-94) in which case I need to go out of the 

country and get my H1 visa stamped. Could you help clarify if there need to be any wait time before the H4-H1B COS can be filed. 

2. I am planning to file H4-H1B COS with a new employer ‘B’ rather than my current employer ‘A’. In this scenario, do I need to file both H4-H1B COS and H1 transfer from Employer ‘A’ to ‘B’ under cap-exempt? In this scenario, do I need to submit my Pay stubs from Employer ‘A’ while applying for H4- H1B COS? 

Thanks for reading my long post. Any help in this regard will be greatly appreciated! 

[jairichi]

I am currently on H1B visa with a desi consulting firm ‘A’, working on E-V-C model with a retail client in IL. I am expecting a baby and the expected due date is: Nov 28th 2013. I will be going on Maternity leave (FMLA) for 3 months from Dec 1st 2013 to Feb 28th 2014. After the Maternity Leave, I am planning to visit India for 2 months with the new born baby from March 1st 2014 till April 30th 2014. While in India, I will be going for H4 visa stamping based on my husband H1B  visa and will enter USA on H4 visa as it is going to be difficult for H1B visa stamping with a desi consulting firm. As I will be Cap-exempt, I will have my Employer apply for COS (Change of Status) from H4-H1 immediately when I am back in USA. 

My questions: 

1.Can the H4-H1 COS be filed immediately once I am in USA or will there be going to be any wait time (as 1-2 months) before the H4-H1 COS can be filed as USCIS might think that I am defeating the purpose of H4 visa and misusing the H4 visa just to enter USA and filing for H4-H1B COS rather than going for H1 visa stamping in India. If USCIS thinks like that, they may approve my H4-H1 COS as Consular Processing (without an I-94) in which case I need to go out of the 

country and get my H1 visa stamped. Could you help clarify if there need to be any wait time before the H4-H1B COS can be filed. 

2. I am planning to file H4-H1B COS with a new employer ‘B’ rather than my current employer ‘A’. In this scenario, do I need to file both H4-H1B COS and H1 transfer from Employer ‘A’ to ‘B’ under cap-exempt? In this scenario, do I need to submit my Pay stubs from Employer ‘A’ while applying for H4- H1B COS? 

Thanks for reading my long post. Any help in this regard will be greatly appreciated! 

1. Yes, your employer can apply immediately.

2. You cannot file. Your employer has to file a COS from H4 to H1B and pay H1B fees. If you are planning to work for employer B then a petition from employer B is enough. As you were unemployed there is no need to submit pay stubs. But, have them in hand if asked.

[t75]

I am currently on H1B visa with a desi consulting firm ‘A’, working on E-V-C model with a retail client in IL. I am expecting a baby and the expected due date is: Nov 28th 2013. I will be going on Maternity leave (FMLA) for 3 months from Dec 1st 2013 to Feb 28th 2014. After the Maternity Leave, I am planning to visit India for 2 months with the new born baby from March 1st 2014 till April 30th 2014. While in India, I will be going for H4 visa stamping based on my husband H1B  visa and will enter USA on H4 visa as it is going to be difficult for H1B visa stamping with a desi consulting firm. As I will be Cap-exempt, I will have my Employer apply for COS (Change of Status) from H4-H1 immediately when I am back in USA. 

My questions: 

1.Can the H4-H1 COS be filed immediately once I am in USA or will there be going to be any wait time (as 1-2 months) before the H4-H1 COS can be filed as USCIS might think that I am defeating the purpose of H4 visa and misusing the H4 visa just to enter USA and filing for H4-H1B COS rather than going for H1 visa stamping in India. If USCIS thinks like that, they may approve my H4-H1 COS as Consular Processing (without an I-94) in which case I need to go out of the 

country and get my H1 visa stamped. Could you help clarify if there need to be any wait time before the H4-H1B COS can be filed. 

2. I am planning to file H4-H1B COS with a new employer ‘B’ rather than my current employer ‘A’. In this scenario, do I need to file both H4-H1B COS and H1 transfer from Employer ‘A’ to ‘B’ under cap-exempt? In this scenario, do I need to submit my Pay stubs from Employer ‘A’ while applying for H4- H1B COS? 

Thanks for reading my long post. Any help in this regard will be greatly appreciated! 

 

Aren't you doing just that? Why be devious? Just get proper H-1B stamping; if your employer cannot provide you with proper documentation for stamping approval, find a better employer.