H1 to H4 out of status!

R

retso

New Member
Hi,
Both my wife and I are Architects on H1 visas.
My wife got laid off from her full-time job on October 2009, however she kept working part time for the same office till January 2010 (there was a possibility that they may get new work.) She has been looking for a new employer ever since, with no luck thus far.
I know we should have filed for H4 COS immediately however, our attorney told us that she can get a new job and transfer her H1 with the caveat that the worst that will happen is that she will have to leave the US and return if there is no I-94.
Since it has been a long time (10 months) since she has been "Out of Status" we are worried that we may have problems in the long run (her I-94 is till valid). The attorney is now telling us to file H4 COS but I'm not sure she is eligible since she is Out of Status. I'm not comfortable not mentioning her being OOS on I-539 (4.e: Have you, or any other person included in this application, done anything that violated the terms of the nonimmigrant status you now hold?) as we would technically be lying!

Any advise would be appreciated!
1. Should we file for COS?
2. Should we say Yes to section 4e above on the I-539 and if so is there any point in applying? If we say No what are the chances they ask for pay stubs in an RFE?
3. Is it better to leave the country and return on am H4? (and save the $300 for I-539)

Thanks for taking the time to read this!
 
Tell the truth. To do otherwise risks a lifetime ban from the US for lying.

(As professionals in an area which demands a great deal of honesty, you do a great disservice to both yourselves and your profession by even considering lying on a document for which you must affirm that you were truthful. I am sure your employer would take action against you for your lack of character and honesty if he were to become aware that you considered lying to US immigration in order to obtain an immigration benefit on the basis of fraud.)

If you cannot be truthful, you need to go home.
 
Concerned4us,
Thank you for your response. I'm not sure you read my post clearly or maybe I might have misrepresented our intent.
Your response is well received, albeit a bit harsh, considering our dilemma was well decribed in my post.
While you have certainly shown us the high road (while making a detailed judgement on our moral character) you have not provided a response to our question.

To anyone else who can help-
As it stands the "big" question is:
1. Are we eligible to apply for a change of status? Is there any chance it will be approved since we have no excuse for not maintaing status?
2. Is it better to leave and apply for an H4 at the consulate? or is that the only option?
 
retso said:
Hi,
Both my wife and I are Architects on H1 visas.
My wife got laid off from her full-time job on October 2009, however she kept working part time for the same office till January 2010 (there was a possibility that they may get new work.) She has been looking for a new employer ever since, with no luck thus far.
I know we should have filed for H4 COS immediately however, our attorney told us that she can get a new job and transfer her H1 with the caveat that the worst that will happen is that she will have to leave the US and return if there is no I-94.
Since it has been a long time (10 months) since she has been "Out of Status" we are worried that we may have problems in the long run (her I-94 is till valid). The attorney is now telling us to file H4 COS but I'm not sure she is eligible since she is Out of Status. I'm not comfortable not mentioning her being OOS on I-539 (4.e: Have you, or any other person included in this application, done anything that violated the terms of the nonimmigrant status you now hold?) as we would technically be lying!

Any advise would be appreciated!
1. Should we file for COS?
------------------------------- She is out of status if she does not have Pay stubs and USCIS will deny her H1 to H4 COS and denial will make her stay illegal from the date she was out of status.
2. Should we say Yes to section 4e above on the I-539 and if so is there any point in applying? If we say No what are the chances they ask for pay stubs in an RFE?
3. Is it better to leave the country and return on am H4? (and save the $300 for I-539)
------------------------------- That is the best Option. she gets H4 visa stamp and she should enter on H4 status
Thanks for taking the time to read this!
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