H4 to H1 COS while In India

D

Divinedew

New Member
Hi,
My Wife had initially entered US on H4, She got her H1 approved & worked for few months. Later even before she stopped working she applied for a change of status to H4 and got her COS to H4 approved. Meanwhile her H4 validity got over and I applied for an extension. The H4 extension was also approved. No out of status throughout. She never got her H1 stamped.

Now she is in India and is working for an employer who has their operations in US as well. I am travelling back for vacation. As we got our H1 & H4 extended, we have to go back for stamping.
Request your help to clarify the following:

1. Is it wise to go for her H4 stamping? What would this mean to her H1 petition approval which is valid for another couple of years?

2. Her current employer in India might be willing to take her H1 over. Can my wife apply for a change of status from H4 to H1 while In India? If yes, what is the process?

3. As we might have an employer in India willing to take over the H1, can she directly go in for H1 stamping with the few salary slips that she has ? Please note there is a gap after that & also she applied for COS.

4. Is it a safer option to go for her H4 stamping and she can come to US on H4 and then apply for H4 to H1 while in US ? If yes, does she have to wait until the COS is approved or can she start working immediately after applying H4 to H1 COS?
Also should she go for stamping immediately after the COS to H1 is approved ?

Appreciate your help.

Thank you.
 
Divinedew said:
Hi,
My Wife had initially entered US on H4, She got her H1 approved & worked for few months. Later even before she stopped working she applied for a change of status to H4 and got her COS to H4 approved. Meanwhile her H4 validity got over and I applied for an extension. The H4 extension was also approved. No out of status throughout. She never got her H1 stamped.

Now she is in India and is working for an employer who has their operations in US as well. I am travelling back for vacation. As we got our H1 & H4 extended, we have to go back for stamping.
Request your help to clarify the following:

1. Is it wise to go for her H4 stamping?
---------------------Get H4 visa stamped and enter US on H4 status.
What would this mean to her H1 petition approval which is valid for another couple of years?
---------------------Employer may have revoked H1 petition. if the employer has job and not revoked her H1 and gives her job letter then she can try for H1 visa stamp.
2. Her current employer in India might be willing to take her H1 over. Can my wife apply for a change of status from H4 to H1 while In India?
------------------------NO. if she enter us on H4 then new US employer can file her H4 to H1 COS.
If yes, what is the process?

3. As we might have an employer in India willing to take over the H1
------------------ employer in India has nothing to do with H1 or H4.
, can she directly go in for H1 stamping with the few salary slips that she has ?
----------------salary slips that she got in India will not help for H1 visa stamp.

Please note there is a gap after that & also she applied for COS.

4. Is it a safer option to go for her H4 stamping and she can come to US on H4 and then apply for H4 to H1 while in US ?
----------------------Correct
If yes, does she have to wait until the COS is approved or can she start working immediately after applying H4 to H1 COS?
-----------------------After COS gets approved.
Also should she go for stamping immediately after the COS to H1 is approved ?
-----------------------------------------if her COS in US gets approved and approval notice has I-94 attached then no need to go out of US just to get Visa stamp.

Appreciate your help.

Thank you.
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I do not know why she would not get H1B stamping and enter on it if she intends to work. If her employer cannot provide the proper documents for her stamping, she needs a new employer. A COS to H1B in the US followed by stamping in home country does not guarantee the stamping.
 
Thank you Ginnu & Concerned4us.

The problem is that she has few salary slips from her US employer and we are pretty sure that her previous US employer would have revoked her H1.

Hence we wanted to check if it is a good idea to go for H1 stamping with those few US salary slips (previous employer), then a gap(on H4) and new employement letter from her current Indian employer who is willing to send her back to US.

Or Is it wise to go back for a H4 stamping, come here and apply for COS to H1. I believe even though her previous US employer would have revoked H1, her petition is still approved for couple more years so taht she can get any other employer to sponsor her.

Please let me know your thoughts. Thank you for your help.
 
Divinedew said:
Thank you Ginnu & Concerned4us.

The problem is that she has few salary slips from her US employer and we are pretty sure that her previous US employer would have revoked her H1.

Hence we wanted to check if it is a good idea to go for H1 stamping with those few US salary slips (previous employer), then a gap(on H4) and new employement letter from her current Indian employer who is willing to send her back to US.

Or Is it wise to go back for a H4 stamping, come here and apply for COS to H1. I believe even though her previous US employer would have revoked H1, her petition is still approved for couple more years so taht she can get any other employer to sponsor her.

Please let me know your thoughts. Thank you for your help.
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"Indian Employer" cannot sponsor for H1. H1 can be sponsored by US employer.
The previous H1 stands canceled once she changed the status to H4. Now a US Employer need to file a new H1 for her. Once approved, she can go for H1 stamping, not before that.

Best way is to come to US on H4. Then file new H1. When H1 is approved and If new H1 comes with I94, start working while in US, no need to go for stamping. If it comes without I94, then she need to go for stamping before starting to work.
 
Divinedew said:
Thank you Ginnu & Concerned4us.

The problem is that she has few salary slips from her US employer and we are pretty sure that her previous US employer would have revoked her H1.
--------------------- Why US consulate will give her H1 visa if her H1 petition is revoked?? she is NOT eligible to get H1 visa stamp if her H1 is revoked by employer Or US employer does not have job for her.
Hence we wanted to check if it is a good idea to go for H1 stamping with those few US salary slips (previous employer)
--------------------From where you get the idea to get H1 stamping if US employer has no job and revoked H1 petition??

, then a gap(on H4) and new employement letter from her current Indian employer who is willing to send her back to US.
------------------------What do you mean by Indian employer? Employer who is in India has nothing to do with H1 or H1 Visa. H1 is only filed by US employer to work with US employer and US employer file the H1 petition and US employer get H1 approved and gives the job offer letter.
Or Is it wise to go back for a H4 stamping, come here and apply for COS to H1.
I believe even though her previous US employer would have revoked H1, her petition is still approved for couple more years so taht she can get any other employer to sponsor her.
-------------------------- if Employer revoked H1 by writing to USCIS then how can her H1 petition be valid? USCIS revoked that Petition and that is not valid.
Please let me know your thoughts. Thank you for your help.
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Thank you EricS and Ginnu.

I had used some terminolgies to differentiate differnt players & explain the scenario. Looking at your response I believe I have a long way to learn to be effective in my communication :).

Anyways, as indicated previously "Indian Employer" term was used as they have their operations in USA. So my Wife can come to US on H4 and this new US employer can have her H1 transfered to them by offering a job in USA.

As far as the previous employer revoking H1 is concerned, I was informed that once you have an H1 alloted through the lottery system it is valid for its tenure even if your existing employer lays you off/revokes. However it is important to have another employer willing to offer you a job and have the H1 taken over.
I am not sure if my understanding on this is wrong. If it is wrong, then there is no point in even thinking of H1.

She can come on H4, apply for H1 again through some consultant/employer, see if she gets through lottery & then take it from there.

Not sure if this explains what I was thinking/asking.

Thank you for your help.
 
Divinedew said:
Thank you EricS and Ginnu.

I had used some terminolgies to differentiate differnt players & explain the scenario. Looking at your response I believe I have a long way to learn to be effective in my communication :).

Anyways, as indicated previously "Indian Employer" term was used as they have their operations in USA. So my Wife can come to US on H4 and this new US employer can have her H1 transfered to them by offering a job in USA.
-----------------if she reach US on H4 status then new employer need to file H4 to H1 Change of status and once her COS is approved only then she can work with US employer. it will not be H1 transfer it will be H4 to H1 COS.
As far as the previous employer revoking H1 is concerned, I was informed that once you have an H1 alloted through the lottery system it is valid for its tenure even if your existing employer lays you off/revokes.
----------------somebody gave you wrong info. If employer A filed H1 for X and got H1 petition approved and then has no job for X or A revoke the H1 petition then petition is not valid it is REVOKED.
However it is important to have another employer willing to offer you a job and have the H1 taken over.
------------------------Before the employer Revoke H1 petition and one has latest pay stubs and finds new employer then new employer can file H1 transfer. if H1 petition is revokes then one is not on valid H1 status and new employer cant file H1 transfer and if file it will get rejected.
I am not sure if my understanding on this is wrong. If it is wrong, then there is no point in even thinking of H1.

She can come on H4, apply for H1 again through some consultant/employer, see if she gets through lottery & then take it from there.
-----------------if she comes on H4 then new employer can file H4 to H1 Change of status.FYI at this time if any consulting company files H1 or H4 to H1 COS they are being rejected by USCIS. USCIS is after consulting companies who in past violated H1 terms/regulations, kept employee on Bench and if they rely don’t have job. Better not to go through consulting company and find genuine employer.

Not sure if this explains what I was thinking/asking.

Thank you for your help.
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