H1 Approved but ineligible for Change of Status

[avinashinampudi]

Hi,

 

My wife who is on H4 applied for a H1 this year. H1 was approved in October 2013 but her change of status (COS) was ineligible. The reason may be because she left the country in may while her visa was in processing but entered US in June on her H4. Her visa was not approved during this period.

 

On the I797 form it is given that although she was ineligible for COS she can exit US and apply for proper visa at a consulate abroad. They did not specifically mention the consulate has to be in home country in the I797 form.

 

1) Does this mean she can go for stamping in Canada?

2) Can her employer apply for Change of Status from H4 to H1.

 

Which process is less risky and advisable?

 

If it is specifically mentioned in her I797-B form that she has to go for a visa in order to be eligible to work is it more advisable to get the stamping done?

 

She is on a In-house project which I am assuming will be a problem if she goes for a visa stamping.

 

What would be the best route for her.

 

I truly value the suggestions in this forum.

 

Thanks in advance. 

[jairichi]

Hi,

 

My wife who is on H4 applied for a H1 this year. H1 was approved in October 2013 but her change of status (COS) was ineligible. The reason may be because she left the country in may while her visa was in processing but entered US in June on her H4. Her visa was not approved during this period.

 

On the I797 form it is given that although she was ineligible for COS she can exit US and apply for proper visa at a consulate abroad. They did not specifically mention the consulate has to be in home country in the I797 form.

 

1) Does this mean she can go for stamping in Canada?

2) Can her employer apply for Change of Status from H4 to H1.

 

Which process is less risky and advisable?

 

If it is specifically mentioned in her I797-B form that she has to go for a visa in order to be eligible to work is it more advisable to get the stamping done?

 

She is on a In-house project which I am assuming will be a problem if she goes for a visa stamping.

 

What would be the best route for her.

 

I truly value the suggestions in this forum.

 

Thanks in advance. 

1. Though US education is required for H1B visa stamping at Canada there are posts in this forum where people had successful stamping at Canada without US education.

2. Yes, her employer can apply for a COS. But, I doubt employer would be interested as they have to pay H1B fees again.

 

Best option would be is to stay on H4 status and find a good employer who has real job for her.

[avinashinampudi]

Thank you for your reply. She has a US education. She has done her master's in the US.

She has tried all last year for job's, she would even do well in the interviews but none of them are willing to sponsor her H1. We hate to follow this route but it looks like we have no options.

 

The employer has paid H1 fee while applying for her H1....COS will require another set of H1 fee? This is as good as applying for a new H1.

 

Can this be solved if she tranfer's her H1 to a new employer right away? Is it advisable to do so?

 

[jairichi]

Thank you for your reply. She has a US education. She has done her master's in the US.

She has tried all last year for job's, she would even do well in the interviews but none of them are willing to sponsor her H1. We hate to follow this route but it looks like we have no options.

 

The employer has paid H1 fee while applying for her H1....COS will require another set of H1 fee? This is as good as applying for a new H1.

 

Can this be solved if she tranfer's her H1 to a new employer right away? Is it advisable to do so?

What is the current status of your wife? I hope your wife is not working for her employer as she is currently on whatever status she was before her H1B got approved.

Any change in employer is considered as new H1B petition. The only difference is that it is cap exempt. Therefore, H1B fees have to be paid for every change in employer.

[avinashinampudi]

Current Status is H4...H1 approved but COS denied.

We are planning to apply for a COS instead of stamping in Canada. How much time does it take approximately.

 

 

Thanks,

[jairichi]

Current Status is H4...H1 approved but COS denied.

We are planning to apply for a COS instead of stamping in Canada. How much time does it take approximately.

 

 

Thanks,

Her employer has to apply and pay H1B fees. A minimum of 4 months by regular processing and 15 calendar days by premium processing.

[andiamo]

Current Status is H4...H1 approved but COS denied.

We are planning to apply for a COS instead of stamping in Canada. How much time does it take approximately.

 

 

Thanks,

 

Avinash,

 

If you could help explain your situation better please. Here's what I understand

 

1. Your wife filed a H-1 petition through an employer while on H-4

2. During processing travelled out of US. Left on H-4, got back on H-4

3. Now with the petition approved, not eligible for COS from H-4 to H-1 as evidenced in the I-797.

 

Can't the same employer file for a COS again now that she is back in the US ?

 

If not, is'nt travelling back to India and going to the US Consultate and getting an H-1 stamped a possibility ?

Why do you think that's risky ?

[avinashinampudi]

The same employer is not willing to file for a COS. He says the attorney is not comfortable to do so. Initially when my wife filed for a H1 she has an RFE on her case. The attorney thinks there could be another RFE and USCIS might go to my office for an audit.

 

My wife is not comfortable travelling to India or Canada for stamping because she is not a full-time(The client letter would state that she is on a in-house project). While contracting there is always a risk for getting rejected is what I understand.

 

Keeping this in mind how will it play if she finds a new employer and have her H1 transferred.

[jairichi]

The same employer is not willing to file for a COS. He says the attorney is not comfortable to do so. Initially when my wife filed for a H1 she has an RFE on her case. The attorney thinks there could be another RFE and USCIS might go to my office for an audit.

 

My wife is not comfortable travelling to India or Canada for stamping because she is not a full-time(The client letter would state that she is on a in-house project). While contracting there is always a risk for getting rejected is what I understand.

 

Keeping this in mind how will it play if she finds a new employer and have her H1 transferred.

Well, she can always opt for a new employer provided new employer is willing to file a COS petition. Approval depends on documents submitted.

[avinashinampudi]

If the new employer files for a H1 transfer does it not take care of COS petition? Does he have to file it separately.

 

In this case the employer will be filing H1 fee + COS fee. Is this right?

[JoeF]

COS will require another set of H1 fee? This is as good as applying for a new H1.

Yes. It *is* a new H1.

 

The same employer is not willing to file for a COS. He says the attorney is not comfortable to do so. Initially when my wife filed for a H1 she has an RFE on her case. The attorney thinks there could be another RFE and USCIS might go to my office for an audit.

That's probably because of the in-house stuff. That's a big red flag nowadays.

 

She can (and probably should) look for a better employer.

[jairichi]

If the new employer files for a H1 transfer does it not take care of COS petition? Does he have to file it separately.

 

In this case the employer will be filing H1 fee + COS fee. Is this right?

If your wife is in US then new employer can file H1B petition as change of status. There is no fee for COS. Employer has to pay H1B fees.

[avinashinampudi]

I am little confused here.

If she looks for a better employer then the New employer has to pay for H1 transfer and COS. Is it two set of fee he has to pay?

[jairichi]

I am little confused here.

If she looks for a better employer then the New employer has to pay for H1 transfer and COS. Is it two set of fee he has to pay?

COS does not involve any fee separately. It is an option allowed if one stays in US in another status and wants to change to a new status without the need to exit and enter US on a specific visa. In your wife's case only H1B petition fee is involved which will be taken care by employer.