Is H1 stamp needed if H4 stamp exists and H1 I-797 is approved?

K

Kart2004

Registered Users (C)
Hello!

My wife currently has a H4 stamped in her passport. She is India right now and is planning to travel in June 2007.

Now her H1 will most likely be approved. Does this mean she has to go for stamping her H1 VISA or can she travel on her H4 (valid till 2009)? Is it required to carry the approved I-797 for her H1?

Thanks!
 
If the applicant is out of country, then the I-94 based on which the change of status from H4->H1 was applied is no more valid. In this situation, USCIS H1 (I-797) approval could be with or without I-94. If 797 is approved without I-94, then the applicant has to get the H1 stamped by going out of country to get H1 status.

As for travel she can travel back with her existing H4 stamp, for this you don't need the approved 797. After she comes to US on H4, let us say the 797 gets approved without I-94, then she has to go out of country to get the H1 stamped before starting to work. But if the 797 gets approved with I-94, then she might be fine.

On the other hand if the H1 gets approved before her trip to US, and she gets the H1 stamped then she can travel to US on H1 status. If she does this, she can start working after coming to US. But you need to consider the fact that the new H1 effective date will be from Oct 2007, so I am not sure whether she can travel to US before that on H1. Also keep in mind the H4->H1 stamping is not an easy thing to navigate through without Pay-stubs and all. For some reason let us say the H1 stamping gets denied, then the existing H4 is not valid. At that time if she decides to travel on H4, she has to go through the H4 stamping process all over.

Given the complicated nature of all this, if it is me, then I would travel back on H4, once back here wait for the H1 approval, based on whether it is with or without I-94 then decide the course of action.

Good luck & keep us posted.

Kart2004 said:
Hello!

My wife currently has a H4 stamped in her passport. She is India right now and is planning to travel in June 2007.

Now her H1 will most likely be approved. Does this mean she has to go for stamping her H1 VISA or can she travel on her H4 (valid till 2009)? Is it required to carry the approved I-797 for her H1?

Thanks!
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Thanks a lot for the reply.

another_fella said:
If the applicant is out of country, then the I-94 based on which the change of status from H4->H1 was applied is no more valid. In this situation, USCIS H1 (I-797) approval could be with or without I-94. If 797 is approved without I-94, then the applicant has to get the H1 stamped by going out of country to get H1 status.
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She is already in India (she never entered US on H4 as we just got married)

another_fella said:
As for travel she can travel back with her existing H4 stamp, for this you don't need the approved 797. After she comes to US on H4, let us say the 797 gets approved without I-94, then she has to go out of country to get the H1 stamped before starting to work. But if the 797 gets approved with I-94, then she might be fine.
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Does this mean it will take that much time to get I-797? I was hoping I would get it by June end. We both are going to travel back to US in the first week of July, so she should have the I-797 by then right?


another_fella said:
On the other hand if the H1 gets approved before her trip to US, and she gets the H1 stamped then she can travel to US on H1 status. If she does this, she can start working after coming to US. But you need to consider the fact that the new H1 effective date will be from Oct 2007, so I am not sure whether she can travel to US before that on H1. Also keep in mind the H4->H1 stamping is not an easy thing to navigate through without Pay-stubs and all. For some reason let us say the H1 stamping gets denied, then the existing H4 is not valid. At that time if she decides to travel on H4, she has to go through the H4 stamping process all over.
Click to expand...

She is not yet in H1 status so how would the pay stubs come into the picture? Or am I understanding it wrong? One concern I have is that the officer may ask her (during H1 stamping) why she did not travel to US despite having the H4 for a few months (She could not come to US on H4 due to some family problems),

another_fella said:
Given the complicated nature of all this, if it is me, then I would travel back on H4, once back here wait for the H1 approval, based on whether it is with or without I-94 then decide the course of action.

Good luck & keep us posted.
Click to expand...

Now lets say the H1 gets approved, then she cannot enter on H4 right as this would be invalid then. I hope we get some time after H1 approval (receiving I-797) so that we can schedule the stamping date and then travel US together in the first week of July with her H1 stamped.

Thank you very much.
 
oops.. you got me off-guard. First off I had assumed she has been to US on H4, and is visiting India now. Which is not the case at all. So whatever I have said earlier does not apply to you, just ignore it all.

Now that I know better, read this:

Since she never traveled to US, the question of 797 getting approved with I-94 does not arise at all. She has to get the H1 stamped after the approval in a consulate in India to get H1 status.

If it is me, I won't plan on anything thinking the H1 will be approved before July, unless the H1 was filed under Premium. Even if you have got the receipt number remember the USCIS is still working on issuing receipt notices for H1 applications, and you are already talking about approval. Let us say luck is on your end and the H1 gets approved before July, and she gets it stamped in India in a consulate. Since the H1 starting date is Oct 2007, I don't think she can travel in July. You may want to consult an attorney on whether she can travel on H1 in July using Oct 2007 quota.

Not coming to US on H4 should not be an issue at the time of H1 stamping. If asked at the consulate during H1 interview, as long as she can give a valid reason that should suffice.

Now lets say the H1 gets approved, then she cannot enter on H4 right as this would be invalid then. I hope we get some time after H1 approval (receiving I-797) so that we can schedule the stamping date and then travel US together in the first week of July with her H1 stamped.
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The existing H4 does not get void just because she has a H1 approved. But if she goes for H1 stamping, then mostly (99.99%) the existing H4 will be voided. Let us say the H1 gets approved before the travel start date, but you decide to travel using her H4 in July there should not be any issue with that.

Again I won't plan on anything like getting H1 approved, and have it stamped before July, and then travel to US in July 2007 using the H1.


Disclaimer: I am not a lawyer and this message is not meant to be legal advice.


Kart2004 said:
Thanks a lot for the reply.

She is already in India (she never entered US on H4 as we just got married)

Does this mean it will take that much time to get I-797? I was hoping I would get it by June end. We both are going to travel back to US in the first week of July, so she should have the I-797 by then right?




She is not yet in H1 status so how would the pay stubs come into the picture? Or am I understanding it wrong? One concern I have is that the officer may ask her (during H1 stamping) why she did not travel to US despite having the H4 for a few months (She could not come to US on H4 due to some family problems),



Now lets say the H1 gets approved, then she cannot enter on H4 right as this would be invalid then. I hope we get some time after H1 approval (receiving I-797) so that we can schedule the stamping date and then travel US together in the first week of July with her H1 stamped.

Thank you very much.
Click to expand...
 
Thanks a lot man!

I think this answered all my questions, especially this quote below:

Let us say the H1 gets approved before the travel start date, but you decide to travel using her H4 in July there should not be any issue with that.
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But I would be more glad if the H1 is approved after July 8th (which also looks likely!) so that she can safely come to US on H4.

So if I understand this right - the H4 gets cancelled only when the H1 is "stamped" - so between now and October travel to US on H4 will be valid, irrespective fo whether the H1 is approved or not.
 
Since she never came to us, and the H1 was not change of status, instead it was a H1 application which would require on approval a stamping to be done in the beneficiary's local consulate, there is no question of the existing H4 getting canceled after Oct 2007 without going for visa stamping. In other words the H4 gets voided only if she goes for H1 stamping.

If you never go for H1 stamping, either now or after Oct 2007, up to the validity of current H4 she can travel to US on H4.


Kart2004 said:
Thanks a lot man!

So if I understand this right - the H4 gets cancelled only when the H1 is "stamped" - so between now and October travel to US on H4 will be valid, irrespective fo whether the H1 is approved or not.
Click to expand...
 
another_fella said:
Since she never came to us, and the H1 was not change of status, instead it was a H1 application which would require on approval a stamping to be done in the beneficiary's local consulate, there is no question of the existing H4 getting canceled after Oct 2007 without going for visa stamping. In other words the H4 gets voided only if she goes for H1 stamping.

If you never go for H1 stamping, either now or after Oct 2007, up to the validity of current H4 she can travel to US on H4.
Click to expand...

Thanks! I am relieved now :)
 
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