Complicated H1b to H4 scenario


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Hi Murthy Forum Followers,


I have a complicated H4 to H1-b conversion scenario and want to clear my understanding on this.


My wife is on H4 and I’m on H-1b, found a consultancy who was ready to sponsored H-1b for my wife and luckily as she picked up in lottery this Fiscal Year 2015 and got h-1b approved until 2017. But, both of ours I-94 was valid only until August 15 2014 and i guess when attorney filed my wife h-1b she might have gone through consular processing(correct me if i’m wrong here) I’m saying this because my wife got H-1b approval(I-797B) without I-94 in it. As our I-94 was valid until August 15th we got our H-1b and H4 extended to ensure we are in status. Here are the open questions


1) As my wife I-797B doesn’t contain I-94, attorney should take the H4 I-94 and do a CoS to H-1b, am i correct ? Will it be a I-539 or again new I-797 under h-1b cap exempt ?

2) In the above point will the CoS or New Processing can be done Premium ? (not sure what it can be that is why 2 options are given by me)

3) What are the chances of approval based on already approved petition ?

4) Whether my wife can work when CoS is in progress ? I guess no but want to check again. I know once it is approved she should start immediately without delay.

5) If my wife get a better employer/opportunity and if they are interested in sponsoring a H-1b transfer can she opt for it as she will not have any paystubs as the CoS will be in progress and it will be crossing Oct 1st 2014 already.

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1. Ask lawyer to send I-797A copy which usually contains I-94 at the bottom. I-797B will never have a I-94 at the bottom. If I-797A doesn't have I-94 at the bottom, that means your wife's H1b is approved, but COS is not approved or asked for. So she needs to go out of US, get H1b stamped and re-enter to be in H1b status / to join H1b employer.

2. Refer 1

3. Refer 1

4. Refer 1

5. No because cap-exempt H1b status is in place only when H1b petition is approved + H1b visa is granted OR COS is approved. 

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1. COS in this context implies a new non cap H1 filing with COS from H4 and can only be done if the employer agrees to pay for another H1 petition. He may ask her to leave and come back with a H1 visa.


2. Yes, PP can be done if the employer agrees to file.


3. The chances are good.


4. NO


5. Yes. But she needs to leave and return with a H1 visa or she needs to have another employer file a H1 petition for her and get it approved.


Nothing complicated. She is in H4 status now and will remain so unless she leaves and returns with the H1 visa or finds an employer who will file her H1 with COS from H4. Any reason why she is not trying to get a visa.?

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