H1B and H4 stamping confusion


enjoyelan

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I am in the US with a H1B and my family is with me on H4. My wife applied for a H1B from a consulting organization. She got through the quota, but there was an RFE that the employer was trying to resolve. The approval didnt happen before October 2013 and she went to the home country in October. 

 

The H1B application got approved when we were in our home country. As I had changed employers, I had to go for stamping in my home country. We applied for her H4 through my H1B. She got her H4 approved without any questions on the VISA interview. 

 

We landed in the USA in January 2014, now another employer is willing to transfer her H1B visa to them and planning to get her change of status. They are telling that her H1B was cancelled when she got her H4 in home country. They are telling that USCIS has a new rule this year that the H1 must’ve been activated in the U.S. prior to switching to the H4. Without having activated the H1 (either working on the H1 or being in the U.S. at the time the H1 was approved in the quota), USCIS will not approve a transfer from H4 to H1B.

 

- Is it possible now to get her H1B change of status? If so what should she do?

- Can any employer apply for a COS or only her original petitioner can apply COS?

- Can she again go to a foreign country and apply for H1B (using valid documents)?

 

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Thank you for the details. I will have to consult an immigration attorney to clarify this new rule from USCIS.

 

During her VISA interview the PO didnt mention anything about her pending/approved H1B application. Is there any clause that the PO can cancel her H1B?

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