Can we travel to India while H1 is in process

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little_tongya

Registered Users (C)
Hello All,

I am on H1 and my wife is on H4 status. We both staying in US past 6 years. We received her H4 approval two weeks back(8,9 and 10th year extension) as my 140 is approved. Based on H4 status time reset bill passed few months back, we applied for her H1B (premium processing) on March last week. Recently Employer got RFE and is process of responding to the query. In this situation, can we travel to India while her H1 is pending?

I also want to clear my doubt that even after her H1 gets approved in next couple of weeks and then we travel to India. On the way back to US(before Sept 07) we need to get VISA stamped so she need to stamp the VISA as H4 and not as H1; Is that correct?

Please let us know...
 
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little_tongya said:
Hello All,

I am on H1 and my wife is on H4 status. We both staying in US past 6 years. We received her H4 approval two weeks back(8,9 and 10th year extension) as my 140 is approved. Based on H4 status time reset bill passed few months back, we applied for her H1B (premium processing) on March last week. Recently Employer got RFE and is process of responding to the query. In this situation, can we travel to India while her H1 is pending?
Click to expand...

The pending H1 is change of status from H4 to H1 based on the current I-94. So if you travel before the change of status (H1) gets approved, then it may be approved without I-94, in which case you need to get it stamped to get H1 status so the applicant can start working for the company.

To play it safe it is advised not to travel during change of status like the above one, instead wait till the approval, work for a while on H1, get few pay-stubs for the H1 stamping and then travel. This way you can get the H1 stamped before coming back to US.


I also want to clear my doubt that even after her H1 gets approved in next couple of weeks and then we travel to India. On the way back to US(before Sept 07) we need to get VISA stamped so she need to stamp the VISA as H4 and not as H1; Is that correct?

Please let us know...
Click to expand...

If she travels after H1 gets approved but before starting work, and she wants to come back to US on H1 status, then she has to get the H1 stamped before coming to US. This may not be easy to get through. I know of an instance where just after H1 approval (from H4-> H1), before starting to work on H1, the beneficiary traveled to India and went for H1 stamping, at the visa interview they asked for additional documents from company, and it kept on dragging. Finally beneficiary has to get the H4 stamped to get back to US.

You had also mentioned that the company got RFE for H1 petition, given that I would play it very safely when it comes to going for H1 stamping before starting work for the company.

Irrespective of whether H1 gets approved or not, she can always go to India and get H4 stamped and come back to US on H4.
 
Thanks Another_fella,

She wants to travel India after H1B decision is made, which will happen latest by 15 of June, and return back in month of August, 07.

Even if her H1 gets approved, to play safe we will have her VISA stamped as H4. She enters US as H4 (say August 15, 07). With this scenario, can she start working as H1 on Oct 07. Then later during her next year visit to India, we will have her H1B stamped. What is the problem do you see here?
 
Travel during Change of Status.

For some reason my Lawyer asked me not to travel during change of status. The situation for us was my wife was moving from H4 to H1 and if we had applied for the H1 and went to get stamping in H4 , the application for H1 would be void. He said something of that order, so just make sure.
I'm thinking the immigration will have details of your appliation for H1 as all the time after you've applied.
Just a caution, ask a lawyer to be sure.
 
I wouldn't travel after H1 approval, and return with H4 status, and expect to start working on H1 after returning. You may have to file change of status here, but I am not sure whether the change of status will be smooth. This is something like moving from H1 to H4 to take a break, and then moving from H4 to H1 when you want to work, but the difference is she would have never worked on H1 to start with. Remember her earlier H4 I-94 based on which the H1 was granted is not valid anymore after the intended travel in August.

Again I would be very cautious if I plan to maintain the H1 status and definitely would consult a lawyer before traveling.

Safest thing to do in my opinion is:
- No immediate international travel.
- Wait for H1 approval.
- Work on H1 for few months and get few pay-stubs.
After this you can plan your travel. You may also want to consider doing the H1 stamping in Canada, and then travel to India.

Like the other poster suggested, do consult an attorney instead of solely relying on messages here.

little_tongya said:
Thanks Another_fella,

She wants to travel India after H1B decision is made, which will happen latest by 15 of June, and return back in month of August, 07.

Even if her H1 gets approved, to play safe we will have her VISA stamped as H4. She enters US as H4 (say August 15, 07). With this scenario, can she start working as H1 on Oct 07. Then later during her next year visit to India, we will have her H1B stamped. What is the problem do you see here?
Click to expand...
 
For some reason my Lawyer asked me not to travel during change of status. The situation for us was my wife was moving from H4 to H1 and if we had applied for the H1 and went to get stamping in H4 , the application for H1 would be void. He said something of that order, so just make sure.
I'm thinking the immigration will have details of your appliation for H1 as all the time after you've applied.
Just a caution, ask a lawyer to be sure.
Click to expand...

Hello Headsup,

Are you in the same situation as mine then can you ask the same question to your lawyer, which I asked to another_fella?

Meantime, we will have reply from another_Fella. Even I am planning to talk with my lawyer and we can see if their respose matches.
 
I wouldn't travel after H1 approval, and return with H4 status, and expect to start working on H1 after returning. You may have to file change of status here, but I am not sure whether the change of status will be smooth. This is something like moving from H1 to H4 to take a break, and then moving from H4 to H1 when you want to work, but the difference is she would have never worked on H1 to start with. Remember her earlier H4 I-94 based on which the H1 was granted is not valid anymore after the intended travel in August.

Again I would be very cautious if I plan to maintain the H1 status and definitely would consult a lawyer before traveling.

Safest thing to do in my opinion is:
- No immediate international travel.
- Wait for H1 approval.
- Work on H1 for few months and get few pay-stubs.
After this you can plan your travel. You may also want to consider doing the H1 stamping in Canada, and then travel to India.

Like the other poster suggested, do consult an attorney instead of solely relying on messages here.
Click to expand...

Ok I got it.. you say, stamping VISA for H4 after H1B approval will void the H1B. Travelling before Oct 07, she will have pay stubs and more documetns to support her H1B VISA stamping, which VISA officer will also know and USCIS will know too.
 
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