Need Advice - Spouse status

A

asmodean

Registered Users (C)
My wife has gotten her H4 visa revalidated (h4 visa stamping done on her passport) end of last year. Beginning of this year, she got a job offer from a company who processed her H1 papers. She got the H1 approval (premium processing) and started working. She never got H1 Visa stamped on her passport. Because of personal reasons, she will be leaving her job soon. What are her options? She could go back to H4 status. If so, what steps should be taken to make sure she is not out of status. Would I have ask my company to process her H4? (more than an year ago, they applied for her H4 extension when it expired). Or would she have to go back to india and get H4 visa stamping? Please advice. Thanks a lot.
 
Oh... forgot to ask. Could she continue to use her previous H4 stamping or should she get a new visa stamping? Her previous stamping doesn't expire until aug '05 but since she switched from H4 to H1 and would switch back again... would it become invalid?
 
She will lose her H1 status as soon as she stops working for the sponsoring company. In order to maintain her status she should have a lawyer file a change of status request with USCIS (change from H1 back to H4) prior to her leaving H1 sponsor.
My understanding is that visa stamp becomes invalid when one changes his visa classification. This may not cause a problem at the POE but may later on in GC processing.
 
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Bosko_Djurovski said:
My understanding is that visa stamp becomes invalid when one changes his visa classification. This may not cause a problem at the POE but may later on in GC processing.
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She needs to file an I-539 requesting a change of status from H-1 to H-4 as soon as she quits. She needs to provide photocopies of her I-94, her marriage certificate and her spouse's H-1B approval notice.

The visa stamp is NOT invalidated when one changes categories, but is of no use or value when one is in the US. It is only used as permission to present oneself at a POE.
 
Thank you both very much for the responses.

One last question. She will be leaving in a couple of months time. Can we apply for her change of status now? In the sense that even if it is approved in a few weeks time (assuming that it will be approved so fast), she can continue working for couple of months and then leave. Or should we have to time the application?

Thanks again for your responses.
 
Ok, I agree that "invalidated" is not the most appropriate word. However, one's status in US, upon entry using a Visa stamp, is governed by an underlying H1/H4 approved petition that was a basis for Visa issuance.
If that H1/H4 petition, in the meantime, is superceeded by another petition, a person may be out of status regardles of being admited at the POE.
 
Bosko_Djurovski said:
If that H1/H4 petition, in the meantime, is superceeded by another petition, a person may be out of status regardles of being admited at the POE.
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Pardon?

The visa stamp is useful for one, and only one, thing. The visa stamp gives an alien the right to present him or herself at a POE and request admission in the status reflected upon the visa stamp. Nothing more.

Once the alien has been lawfully admitted to the US using that visa stamp (and any underlying petition like H1) it is of no further importance. An alien can enter on an H4 stamp and be in H4 status. The alien can then switch status to H1, back to H4, then to B2, then to H4 and around and around.

Based on your statement, you are saying that a lawful change of status can make someone go out of status. That's clearly impossible.
 
TheRealCanadian... Thanks for clarification.

Now, the next question is - Since my wife entered the country on H4... switched the status to H1 and then would switch it back to H4... would she have to apply for a fresh H4 stamping (when she travels to india again later this year)? Note that the original H4 stamping is valid till August 2005.

Thanks for your insights.
 
TheRealCanadian said:
Based on your statement, you are saying that a lawful change of status can make someone go out of status. That's clearly impossible.
Click to expand...

This is not what I am saying. Let me describe the scenario that I had in mind.
Assume that a person is in US on H4 visa and valid Visa stamp in PP. Then that person finds a job and files application to change his status to H1. In the mean time, before CoS is approved, he goes out of US for couple of months. Before he reneters US CoS gets approved.
When he then enters US with an old but valid visa stamp it is considered that he is back on H4 regardless of CoS approval and can't work without filing another CoS.
The last motion, which in this case is admitted at the POE as person with H4 status, governs one's status.
 
asmodean said:
would she have to apply for a fresh H4 stamping (when she travels to india again later this year)? Note that the original H4 stamping is valid till August 2005.
Click to expand...

Provided that the visa was for multiple entries, there shouldn't be any issue. Legally changing status does not invalidate an existing visa.
 
Bosko_Djurovski said:
When he then enters US with an old but valid visa stamp it is considered that he is back on H4 regardless of CoS approval and can't work without filing another CoS. The last motion, which in this case is admitted at the POE as person with H4 status, governs one's status.
Click to expand...

Ah, I see what you were referring to. That's correct - if the COS petition gets approved while outside the US it is considered invalid.

In fact, all Change of Status petitions are automatically invalidated when the alien leaves the US (although USCIS is not always aware of the departure). Extension of status petitions are not affected.
 
I don't know if I'm missing anything here, but this discussion is a waste of everyone's time if you guys have already filed for 485.
 
Thanks a lot guys for your inputs. I really appreciate it.

Mavishka - Though we have applied for 485, we want to stay in status... and be in H visas.

Thanks again.
 
You are 'in' status after you file your 485. 485's are normally approved unless there are major issues with your 485 application or if your employer withdraws or revokes your 140 before you complete 180 days after filing 485, or if you are out of a job when an RFE is issued. If none of these apply to you, being on H-1 or 485 does not matter. You can work freely with an EAD and travel freely with an AP. In fact, you can even do a side business if you have an EAD, with an H-1 you cannot.
 
Mavishka: True. We wanted to be on H visa if possible. Who knows, we might be using EAD/AP in future. Thanks for your input.
 
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