H1 to H4 unique situation

dollar500

Registered Users (C)
Hi friends,

My H1b is expiring on 27 June and my new employer is planning to start my job on July 15.

What should I do? Should I transfer to H4 in between?

One of the lawyers I was talking told me that there is a rule that whichever visa is approved later is your visa. So if H4(time of approval 4 months) gets approved after H1 I have to change my status to H4. Is this correct?

The second question is: can I stay in US even if my H4 is pending?

Thirdly i'd appreciate if somebody can direct me a link of how to file H4 in US itself. What documents are needed?

I'd really really appreciate answers to these questions.

Thanks
 
I'm not too sure about your first questions.

However, legal experts say you can stay in US while your case is pending.

Third: H4 should be filed by the employer that holds H1B.

Let's wait for legal experts response.

mukeshinmd
rahasiam.com
 
just my personal opinion !

1) I think that pending H1-H4 change or H1 transfer gives you 'legality' of staying in US until decision is made. However, petition should be filed (not actually filed - but should REACH USCIS) while you are still in legal status (non expired H-1).

2) Not sure if you need to file H-4 for few days of your gap between two H-1s. But you do not have any 'grace' period after your H-1 expires (as per my former lawyer), so to be in status probably you should cover that.

3) My experience: My spouse was on H-1 and company (A) was going down. We filed then H-1 to H-4 based on my H-1, it was easy, we just filled some form (available from internet) and gave to my university, which filed that together with my H-1 (transfer at that time). We had to pay the fee and we simply attached a check. We also got a letter from company A that spouse was on a non-paid leave, this was needed to keep legal status since company A had no money to pay the payroll.

4) This is true that if you have 2 pending petitions, and whichever one is approved later - is giving you the status. In our case, for my spouse there was 2 petitions pending, one H-1 extension filed in dec 2002 pending, another H-4 filed in may 2003, both were pending - then H-4 (through my university) was approved in June 2003 (effective from May), and then H-1 (through company A) extension was approved in August 2003.
We all filed I-485 in Sept 2003, thinking that spouse was on H-4 and not aware on approved H-1 transfer by company A, since company A went down in May. But I worried about that pending H-1 extension and I tried to find out what happened, it was really hard but finally I got that information about its approval in August. Only in Jan 2004 I was able to get a copy of approval, and I got a letter from company A that they existed until sept 2003, that they officially fired everybody from Sept 1, and that they INFORMED my spouse about that only later, in Jan 2004.

Thus, since H-1 transfer was approved later than H-4 - spouse actually was on H-1 since august (? or maybe effective back since feb 2003), and we were not aware of this and submitted I-485 with H-4 info.

I collected all documents on that explaining situation and mailed to USCIS asking to change H-4 starting date for my spouse from may to sept 1st, then all would be in order: until Sept 1st spouse was on H-1 pending transfer but unpaid leave, then let go and hence be on H-4 through me, from sept 1 to sept 28 when we applied for I-485 and since spouse was in AOS (with EAD) and I continued on H-1.
USCIS replied with another H-1 for my spouse with sept 1 date! So they understood that sometimes situation is not easy and you can not control things even if you want to.

Complicated story... but in your case, you may apply for H-4 and then if it gets approved later than H-1 transfer - then apply again for H-1 transfer or ask to change H-1 transfer approval date (not sure).
 
Thank you guys

Your discussion was helpful. My other employer actually agreed to start my employment the next day after previous H1 expires.

pfew... relief
 
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