How to determine my current status (H1 or H4 ?)

[h1b_ki_talash]

Hi All,

 

My wife is this situation and looking forward for inputs from experts.

a) She got a job and her employer applied for h1b with COS on April 1st.

b) We got RFE on May 15th. She travelled to India on May 30th.

c) Approval done for case on July 1st with COS approved and I94 attached. (Start date as Oct 1st) 

d) She came back to US on H4 visa on July 5th. She got new I94 (online version, online I94 status shows she admitted as H4 and I94 new number)

 

My question is -> Is her status going to be changed to H1 from Oct 1st ? (because she came back after h1b approval and got new I94. Does that make COS invalid ?)

 

Please advice.

 

 

[pontevecchio]

No. She left during a COS and hence she remains in H4 status now.

[h1b_ki_talash]

But her COS has been approved. With last action rule, her last action is going to be in Oct 1st when H1b gets effective.

Am I missing something ? I think there is some memo also related to this which supports this.

 

Is there an official way to determine what would be case ? LIke checking at USCIS website or calling them ?

[JoeF]

But her COS has been approved. With last action rule, her last action is going to be in Oct 1st when H1b gets effective.

Am I missing something ? I think there is some memo also related to this which supports this.

 

Is there an official way to determine what would be case ? LIke checking at USCIS website or calling them ?

 

The last action was her entry into the US on H4. The H1 was approved before that, so that isn't the last action.

[h1b_ki_talash]

Thanks JoeF for reply. Here is another link which talks about similar (not same) situaltion.

http://www.murthy.com/2005/05/06/travel-after-change-of-status-approval-with-future-start-date/

 

So, last action according to above is going to happen on Oct 1st when H1b gets effective.

So, as per above my wife could be on h1b ?

 

My concern is to find out for sure so that we can appropriate steps. I am ok if it remains H1 or H4. (if H1 we can start working or if H4, she can stay home) But if it not clear then we may be issue. like not working on H1 or working on H4. 

[h1b_ki_talash]

Any inputs on this would be great ?

 

How do I find out from official source that what is my status ?

[jairichi]

Thanks JoeF for reply. Here is another link which talks about similar (not same) situaltion.

http://www.murthy.com/2005/05/06/travel-after-change-of-status-approval-with-future-start-date/

 

So, last action according to above is going to happen on Oct 1st when H1b gets effective.

So, as per above my wife could be on h1b ?

 

My concern is to find out for sure so that we can appropriate steps. I am ok if it remains H1 or H4. (if H1 we can start working or if H4, she can stay home) But if it not clear then we may be issue. like not working on H1 or working on H4. 

Read clearly the link you provided and also the example.

"The travel does not invalidate the previously-approved USCIS change of status effective from a future date. This is because the last action regarding the person's status governs."

Only if your wife's H1B petition was approved before her travel then she will automatically move to H1B status from Oct 1st.

The moment your spouse left US before her H1B petition approval her H4 status ceases to exist and so a COS is considered abandoned. Only if international travel happens after approval of H1B COS petition then even if your wife enters before H1B start date on H4 visa she can move automatically to H1B from Oct 1st. That is not the case with your wife and COS was approved in error by USCIS. So she will be on H4 status beyond Oct 1st till she exits and enters US with a valid H1B visa and I797 or employer files again for COS.

[krs_ravis]

Hello Jairichi,

If her employer files the COS here, what are the chances of success? which one you suggest out of both options?

1. leave country and get the stamp

2. apply for COS by employer

 

Thank you

 

Read clearly the link you provided and also the example.

"The travel does not invalidate the previously-approved USCIS change of status effective from a future date. This is because the last action regarding the person's status governs."

Only if your wife's H1B petition was approved before her travel then she will automatically move to H1B status from Oct 1st.

The moment your spouse left US before her H1B petition approval her H4 status ceases to exist and so a COS is considered abandoned. Only if international travel happens after approval of H1B COS petition then even if your wife enters before H1B start date on H4 visa she can move automatically to H1B from Oct 1st. That is not the case with your wife and COS was approved in error by USCIS. So she will be on H4 status beyond Oct 1st till she exits and enters US with a valid H1B visa and I797 or employer files again for COS.

[pontevecchio]

She needs to ask her employer. Is her employer NJ based?

[jairichi]

Hello Jairichi,

If her employer files the COS here, what are the chances of success? which one you suggest out of both options?

1. leave country and get the stamp

2. apply for COS by employer

 

Thank you

Chances of success are good if all documents are available. Any option is fine. For option 2 employer has to pay again H1B fee. I don't think employer will be willing to do that.

[h1b_ki_talash]

My wife talked to her employer and he says that if she has got I797A (with I94) attached, then she is allowed to work starting from Oct 1st.

We are totally clueless what to do ? If she wants to work, then we need to make arrangements for kids. Also, she also wants to preprae so that she is ready to work as there was gap before. All this needs lot of energy to spend and if we are not allowed - then it is more painful.

She doesn't wants to go out and get it stampped.

 

I am also convencied that if I797A is there with I94 - then we are allowed to work. (They should have NOT given I797A if that was the case) It is not our falut.

 

Also, Is there are official way to check about it ? If so, we would like to do that and follow the rules ??

 

thanks for everyboyd't input. thanks!

[h1b_ki_talash]

She needs to ask her employer. Is her employer NJ based?

Employer is CA based. But how does that matter ?

[jairichi]

My wife talked to her employer and he says that if she has got I797A (with I94) attached, then she is allowed to work starting from Oct 1st.

We are totally clueless what to do ? If she wants to work, then we need to make arrangements for kids. Also, she also wants to preprae so that she is ready to work as there was gap before. All this needs lot of energy to spend and if we are not allowed - then it is more painful.

She doesn't wants to go out and get it stampped.

 

I am also convencied that if I797A is there with I94 - then we are allowed to work. (They should have NOT given I797A if that was the case) It is not our falut.

 

Also, Is there are official way to check about it ? If so, we would like to do that and follow the rules ??

 

thanks for everyboyd't input. thanks!

Looks like employer is clueless. You need to talk to an attorney. The COS (I797A with I94) was approved in error by USCIS. The good way to know things for sure is to talk to an independent attorney and not to your employer.

[h1b_ki_talash]

How about here:->

 

http://www.uscis.gov/self-check

 

One can check his eligibility. I tried for my wife and it gave error. (In both cases were I used her old I94 which came with I797A and also new I94 which she got when came back)

More interestingly, it gave error for mine also.

Has any one tried it or Can anybody try it ? This tool looks really great if it work fine.

[jhansisri]

Hi,

Did you got any update from attorney after checking?

[h1b_ki_talash]

Hi JoeF / pontevecchio / jairichi,

 

I talked to two Attorney's and got totally different answer. One says, I can work as I got I797 w/ I94 attached and other says I need to get visa stamp as my COS is considered denied.  

-- so we are confused again --

 

I checked e-verify status here w/ I94 number which came along with I797A approval and it came out as I am AUTHORIZED to work.

I also tried to use I94 which my wife got when she came back on H4, but that gave system error stating that they can not verify.

 

What do you guys recommend ? (what should we do ? )

 

 

 

[jairichi]

 

Hi JoeF / pontevecchio / jairichi,

 

I talked to two Attorney's and got totally different answer. One says, I can work as I got I797 w/ I94 attached and other says I need to get visa stamp as my COS is considered denied.  

-- so we are confused again --

 

I checked e-verify status here w/ I94 number which came along with I797A approval and it came out as I am AUTHORIZED to work.

I also tried to use I94 which my wife got when she came back on H4, but that gave system error stating that they can not verify.

 

What do you guys recommend ? (what should we do ? )

 

 

 

 

Talk to an attorney from Murthy law firm.

[bart06]

The last action was her entry into the US on H4. The H1 was approved before that, so that isn't the last action.

What if while the H1 COS is being processed, the person travels and returns as H4 and then the H1 was approved. In that case, wont the last action be the COS approval to H1B?