H1 OUT OF STATUS questions

D

defilo

Registered Users (C)
Hi folks,

I just love this forum. Amazing resource for people who can't afford to go see a lawyer.

Could someone please advise based on the info below?

Situation: My wife entered the US in 2007 on H4 from India. She then got hired by this Indian Consultant Company that applied for an H1 for her to start working. The petition was picked in the lottery and was also approved. Her H1 start date was Oct 1st of 2008. She has been on the bench since then until now with no pay and paystubs. Her employer is now asking her to switch back to H4 via COS application and continue to look for a client project. The employer added that she can once again switch back to H1 upon getting a project.

Q1: Is she out of status now? Is there a grace period to stay unpaid on H1? I hear it is 3 months. True?
Q2: Is an H1 transfer possible in case she gets a new job offer from another company?
Q3: Was are the risks associated with changing her status back to H4?
Q4: If we do go ahead and put her back on H4, will it be hard to bring her back on H1 later on when she gets a job?

Please help ASAP since we are at a pretty serious state right now and we need to act asap!

Thanks a lot!
Ram
 
Q1: Is she out of status now? Is there a grace period to stay unpaid on H1? I hear it is 3 months. True?
Where did you hear that? There is no such thing. She needs to get paid all the time. She will not be able to change status without paystubs. Seek legal help.
Q2: Is an H1 transfer possible in case she gets a new job offer from another company?
Same with transfer, she is out of status and cannot transfer.
Q3: Was are the risks associated with changing her status back to H4?
No risks, it is the thing to do. If you can do it.
Q4: If we do go ahead and put her back on H4, will it be hard to bring her back on H1 later on when she gets a job?
No problem

Answers above.
 
Hi, Kabkaba - thanks for your response.

What would you suggest as the best next move?
 
Thanks again. 3 last questions.... Now that she doesn't have any paystubs from her current employer, if she wants to switch back to H1 from H4 in the future,

1. would that be possible?
2. will she be subject to the CAP since she doesn't have any pay stubs?
3. If she can get back on H1, will she need to stick with the current employer?

Thanks much for all the help!
 
Consider travelling outside of the US (Mexico, Canada) and obtain a I-94 based on the original H-4 visa stamp (if still valid). This will override the I-94 obtained from H-1B approval notice.
 
manwithnoname said:
Consider travelling outside of the US (Mexico, Canada) and obtain a I-94 based on the original H-4 visa stamp (if still valid). This will override the I-94 obtained from H-1B approval notice.
Click to expand...

Spouse of h4 holder has to maintain status on h1 all the time. In that case, there is no concern about the h4 holder being out of status.
Now, if the h4 holder switches to h1 and not get paid, does that put the h4 holder out of status due to lack of projects? Note that, if the h1 holder maintains status, there should not be problem for h4 holder (even though they converted to h1).
Caveat: It is definitely unwise to keep on h1 if not getting paid; simply leave the country and re-enter with h4 visa. Further, the h4 spouse has to think about the fact that s/he is taking away visa number from somebody else who could have got the h1 visa and found work. If the h4 spouse is not able to find work, why convert to h1 and make it more complicated than it is worth? May be s/he has to first find work on which s/he will be paid; afterwards, convert to h1. Just my thoughts.

Please do not treat this post as legal advice. Best wishes.
 
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