H1-H1 pending and Wife went to India

J

jaygita

Registered Users (C)
Changing job: My H1-H1 transfer, as well as H4 transfer (I-539) for my wife was applied on 2/25 at VSC by the new employer, and I joined the new employer on 3/18, using the AC21 portability rule.

My wife and one month old baby (born here) travelled to India on 3/31 on a four month roundtrip ticket, expiring 7/30

My wife has a valid H4 visa on her passport, (bearing my previous employer name), valid till 9/2004

It has been close to FIVE months since my H1-H1 and my wife's H4-H4 is pending at VSC. Our company's lawyer has maintained his stand that my wife cannot enter USA on her valid visa WITHOUT the new I-797 approval notice. He says that she will be committing an immigration FRAUD if she does that.

Just because of the delay in VSC, I am being forced to keep my family away from me. I want to have a second opinion - can she re-enter on the current visa (which has my old employer's name), WITHOUT the new I-797 ? She has a copy of the receipt notices for her I-539 as well as my I-129.

Appreciate your help. Thanks.
 
your lawyer is right - she will be committing immigration fraud is she uses an old employer's stamp (and no new approval)
Moreover,
If your wife enters using a old visa then her h4 extension/transfer might be considered abandoned. She will have to apply for H4 extension once again.
My Opinion.
 
Did you consider premium processing for transferring your H1? That's faster, much faster. INS should repond within 15 days.

I did that after waiting 7 months. I got a response from INS in 8 days.

Harsha.
 
Thanks Jaxen..

At least I am now justified in buying a new ticket for her (which will expire 7/30) when the approval comes over.

Last week my employer spoke to INS representative regarding my H1-H1 transfer, and my employer was told that my case is in the adjudication stage..What does this mean?

thanks
 
H1-H1 and H4 Approval received..

I checked on the VSC phone, my H1-H1 and my wife's H4 got approved yesterday (7/25). My wife has H4 visa bearing my old employer valid till 10/2004.
I hope she can enter USA with the old stamping and new approval, which I will receive from INS and will mail it to her in India. Pl. advise.

thanks!!
 
Congratulations on getting the H1 transfer.
Could you pls let me know what documents were asked at the POE when your wife returned.
thanks
 
Wife not travelled back yet

I am yet to receive the approval notice from INS (Actually lawyer will get it and forward to me). Tommorrow will be one week since my approval, I hope the docs will come soon.
I will post a reply once my wife comes back.
 
no

What ur lawyer says is right. She cannot use old Visa that is fraud. Wait for new i797 notice.
 
jaygita...

She is fine, Read up AC21 (lots of copies floating in the web). Let her know her rights.

But if she is faced with some adverse comments from the POE officer, she should calmly request a supervisor to see her case (Just contingency)
 
What to do with extra I-94 ?

I received approved I-797 for myself and my wife today. I will send my wife's 797 to her in India, which she can use with old valid stamping to re-enter USA.

Her I-797 form also contains an I-94, which has the same number as the one which was surrendered by her when she left USA.

When she re-enters, she will have to fill up a new I-94.
The question now is – what to do with the I-94 that came with her approved I-797 ?

(Here's my background for easy recall - my H1-H1 transfer (and wife's H4-H4 transfer) applied on 2/25, I joined new employer on 3/18 after getting receipt, my wife left for India on 3/31, approval papers (I-797 for me and wife) received today, wife is about to travel back to USA.)

many thanks
 
I94

attached to h4 approval no longer valid. Trash it or ignore it. preserve the new I94...
 
Hi,
I am a new member. My case is pretty much similar to but a little bit different from jaygita's and hence I am posting a reply to this thread.
I am on H1B visa and my family is on H4. My family left for India in June 2002. My employment with previous employer ended at the end of July. I got an offer from another company at the end of july and they filed my H1 transfer application in August. I can start working for them from the 3rd week of august, since by that time we are expecting the receipt for my application. The difference from jaygita's case is that my family's H4 extension has not been filed with INS as they are currently in India. I am planning to bring my family back to US on their H4 visa stamping(valid until mid-2003) that was done when I was with the old employer and after they come here I am planning to file their H4 extension. When I contacted a lawyer, she mentioned that I can do this since I will be legally working on a valid visa( though it is from the old employer) when they arrive here and that they should have a copy of my receipt notice to show the inspector at the POE and tell him that I have changed a job. Please advice me as to whether there will be a problem if i do this. Does the fact that my family's H4 extension has not been applied, make them eligible to enter US on their old valid H4 visa?
Thank you very much.
 
Ask the lawyer another Q

what should be the answer if POE inspector asks why was h4 extension/transfer filed along with h1?
 
Hi jaxen,
Thanks for your input. The fact is, the h4 transfer/extension was not filed alongwith my H1 transfer application and has not been filed so far since my family left for India when i was working with the old employer. In fact, this is the only difference between my case and jaygita's case. Hence, the scenario of the POE inspectory asking 'why was h4 extension/transfer filed along with h1?' doesnot arise at all.
Regards.
 
1 more Q for the lawyer...

what will the I94 of your dependents say - expiry date and company name when they enter US?

If you are confident about this then there should not be any problem. I have seem H1s coming in without any problem. I even guess that if you are also traveling along, you should be able to convince the POE guys.

Your wife has to be articulate and be prepared to endure a little harassment, since most of the POE inpsectors are not smart and are ignorant of the common intrepretation of immigration laws.

Please keep us posted of the developments... Good Luck.
 
My wife is back in US !! I-94 date question

My wife came back from India on 8/16/2002.

At POE, her passport had the visa validity date of 9/30/2004.
The immigration officer put this date on her I-94

She presented the new approval notice (i-797) which was applied by my new employer, which had the validity date upto 7/23/2004. But the immigration officer said that the date of 9/30/2004 (visa date) should be fine on the new I-94

She also stopped by another immigration officer who was standing there, and told her the entire case. The second officer also agreed with the first one, and told her that the I-94 date of 9/30/2004 will be fine.

Now, the new I-94 which I have got as a result of employer change has the date of 7/23/2002. Her renewed I-94 (which came through INS, and should be trashed as per Jaxen) also had 7/23/2004. But her new I-94, which she got from POE, has the date of 9/30/2004.
Is this going to pose any problem ?
Is it recommended to get this date fixed by following any of the INS procedure, if at all there is any ?

thanks

(Here's my background for easy recall - my H1-H1 transfer (and wife's H4-H4 transfer) applied on 2/25, I joined new employer on 3/18 after getting receipt, my wife left for India on 3/31, approval papers (I-797 for me and wife) received with validity upto 7/23/2004, passport of my wife has the visa of old employer (h4)valid upto 9/30/2004, my wife came back from India on 8/16, she used the old visa and the new approval to re-enter USA)
 
I94

the latest one - has the final word. As long as the company name (if any) in I94 is correct I do not see any problems.
 
I am in a similar situation and need advice from senior members. My H1-H1 and my wife's H4-H4 has been applied on March 13th which has been approved on August 13 th. However, while the transfer was pending, my wife went to india on August 6th( a week before the approval). She has the visa stamping valid till august 2004 from my previous employer on her passport.

Now that she has a new H4 and I-94, received by me while she was away in India, can she come back with the same old visa stamping and show her new H4 at the POE and enter or does she need a new visa stamping in India. I am sending her all the papers anyway as she would be coming back during this month.

Any advise would be helpful.

:)
 
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