H1B to H4 - out of status questions

[sputnik80]

Hi,

 

My wife's company terminated her service last month. It took us 2 weeks AFTER termination to file (send via mail) for change of status from H1B to H4. We have not yet received the receipt number from USCIS. We don't any paystubs to show for her since the day her employment was terminated. We did, however, send to USCIS copies of paystubs for the 2 months prior to termination.

 

I have the following questions regarding the situation.

 

1. What are the chances that the change of status is approved?

 

2. In the case that change of status is denied, can she go back to India and get her H4 visa stamp? Would there be a problem in getting dependent visa since she was out of status for a few days?

 

3. If USCIS denies the change of status after, say, 2 months, would she be considered out of status for 2+ months? Does this intervening time, while USCIS is considering her case, counted in out of status days?

 

4. If the answer to the second question in (3) is yes, would it help if she goes to India without waiting for the Change of status decision, and apply for a dependent visa there? (that way limiting the number of out of status days)?

 

We would really appreciate your help.

 

Thanks.

 

 

[jairichi]

1. Cannot predict anything. She might be safe.

2. Yes, it is fine. No issues.

3. Yes. Only if her COS to H4 was filed before her last day with employer she will be considered in status.

4. If possible then it is better.

[rahul412]

2 weeks shouldn't be a big deal.

[sputnik80]

Thanks for your responses. I have a follow up question. My wife's previous company had applied for GC for her and her I-140 is approved.

 

If my wife can find another employment now, while her COS to H4 is pending, is it possible to request a cancellation of this H4 COS, and have her new employer file for COS to H1B instead? Or would we be required to wait until the COS to H4 is approved and only then file for COS to H1B with the new employer?

 

[sputnik80]

Hi,

 

I need some information as soon as possible.

 

To summarize in brief, my wife, who was laid off by her ex-employer applied for a COS to H4 (dependent on me). There was an intervening period of 16 calendar days between the day she stopped receiving compensation, and the day when USCIS received her COS application. We have got a receipt number from USCIS for the COS to H4.

 

Now, last week, she found a job with another employer. The new employer considered her visa situation and recommended that they file for a Change of Status (COS) from H4 to H1B based on the COS (to H4) receipt number we have got. They will file this COS in premium processing.

 

Could you please answer the following questions?

 

1. Is it even possible to do so? Her H4 status is not yet approved and the new company wants to file a COS from this unapproved H4 status to H1B based on just he receipt number.

 

2. If this COS to H1B is approved, what will happen to the pending H1B to H4 COS that we have already applied for? Does that get automatically canceled or do we need to explicitly apply to USCIS to cancel it?

 

3. Is there a better way to do this? Like file a fresh H1B (cap exempt) and let her go to India and get a stamp?

 

We would appreciate nay help/info you can provide.

 

Thanks.