Can spouse travel outside USA who has valid visa stamping till 12/31/26 while H1B transfer is under progress

[sachinma912]

Hello Rajivji
I really appreciate all the help and your expert advices on many immigration related questions /processes. Thanks a ton for doing this .

I have a question/seek your expert advice for my family travel to India.

Situation:
I am in between jobs and my new employer have posted the LCA notice today I.e 12/11/2024. It has to be posted for 15 consecutive days before the H1B visa transfer can be initiated .

I , primary H1B and my dependents ( spouse and son -H4’s) have approved petition and stamped visa from my previous employer till 12/31/2026.

Considering the premium processing for H1B transfer with LCA being posted on 12/11/2024 .i am
Expecting the H1B will be transferred by 2nd or 3 rd week of January 2025.

It was planned travel made during last November for us travel to India to celebrate my in-laws 50th wedding anniversary on Dec 23 and return back on Jan 7th.

As my H1B will be under transfer process I am not traveling.
Can my wife travel on Dec 23 and return back once I have the approved petition from new employer ??
She will stay back till the approval is recieved on new H1B petition transfer.

Is it required her to carry the original copy of the new approval petitioning document or is it okay to come with a photocopy of the petition While she is returning back to USA.? as she has the stamped visa till 12/31/2026.
Or is it required for her to go for stamping again under my new employer H1B petition?
New employer is not filing the H4and H4 EAD as they consider them as my personal applications and want me to file them outside and get them reimbursed.

Based on my current attorney, they say H4 and H4 EAD are not required as they are already approved till 12/31/2026 with old employer. Please advice is it correct understanding .Thanks


Thanks in advance once again for all the help and your time consideration.



Thanks & Regards,
Sachin R

 

[Swagatusa]

Hi Sachin,

Based on your situation, your wife can travel back to India as planned and return to the U.S. without any issues, as long as her H4 visa is still valid (until 12/31/2026). Here are some key points:

1. H4 Visa Validity: Since her H4 visa is valid until 12/31/2026, she should be able to re-enter the U.S. without needing a new H4 stamp. The H4 visa is tied to your H1B status, so as long as you have an active H1B (even during the transfer process), she can return on her current H4 visa.
2. H1B Transfer in Progress: She does not need the new H1B petition approval to re-enter, as the approval is for your status, not hers. The key factor for her entry will be her valid H4 visa and the fact that you are still in valid H1B status.
3. Required Documents for Re-entry: She should carry a copy of your new H1B approval notice when returning, although the original may not be necessary. This will help clarify your status during entry if required.
4. H4 and EAD Filing: Since her H4 and EAD were approved with the old employer, and the new employer isn’t filing for them, it’s correct that they don’t need to be refiled, as long as she doesn’t need a new visa stamp (which she doesn’t in this case).

In summary, she can travel as planned, and return on her current H4 visa, and there is no need for new visa stamping or H4/EAD filings unless circumstances change.

Safe travels!