Out of status on H1B visa; any issues with H-4

J

JohnThomas82

Registered Users (C)
I came to USA on H-1B in 2006, but I was never paid by the Employer since the Employer could not find a project. After one year has passed, I came to know that I am out-of-status (did not fully know immigration laws at that time) and I applied for COS based on my Spouse's H-1B. Luckily, CIS did not ask for "my" pay stubs and the COS was approved. Can anyone please suggest if there will be any problems when I go for Visa stamping at a consulate abroad as a H-4 dependent?

My concerns are (a) if they will ask me to prove my Status when I was on H-1B for year (I don't obviously have W-2 or Pay stubs); (b) even though I cannot prove my H-1B status, will consulate still issue H-4 visa now, notwithstanding that prior violation? (c) will consulate question that my previous H-4 COS was perhaps acquired fradulently?

Any insight or help will be greatly appreciated. I am leaving for my home country in less than a week, so please, I really plead for expert guidance or opinion.
 
Last edited by a moderator:
There is definitively a possibility that they will ask you to prove that you were maintaining valid status. Did your employer withdraw your H1B petition? If not, you might have been out of status but not necessarily unlawfully present, so you might not be facing a 10 year bar (worst case). You should probably consult an experienced attorney to sort this out this the downside is pretty severe.
 
The employer did not revoke the H1B, but only placed me on bench. I personally found out that I was out of status and filed for H4 immediately. In fact, the employer was not happy that I changed my status to H4.

Do you think it is a problem, i.e., will I face any bars or visa rejection now?
 
I am not sure how far the verification will be for h-4 visa application... Later, when you apply for green card these (holding H-1B and not getting paid) will be definitely checked.
 
Your problem is definitively beyond the kind of arm chair advice you can get here. Go see a good attorney.
 
I have consulted an attorney and got the COS changed spending lot of money. I have even consulted another attorney just for advice (because I am currently in H4 status and the advice was regarding visa rejection at consulate). The response was to get a letter from the previous employer that I was not on payroll because they could not find a project. Who in this world would give such a letter? I really don't know what to do at this juncture.

One more thing, I also have an AP, is it safe to use it and come back and thus avoid questionning at consulate? If the 485 gets rejected in due course and my spouse continues to maintain H1B, can I switch to H4 at that time?

Nscagony, there is a pinch of rudeness in your response. If you dislike helping others, please don't respond and I think we all can understand.
 
JohnThomas82 said:
I have consulted an attorney and got the COS changed spending lot of money. I have even consulted another attorney just for advice (because I am currently in H4 status and the advice was regarding visa rejection at consulate). The response was to get a letter from the previous employer that I was not on payroll because they could not find a project. Who in this world would give such a letter? I really don't know what to do at this juncture.

One more thing, I also have an AP, is it safe to use it and come back and thus avoid questionning at consulate? If the 485 gets rejected in due course and my spouse continues to maintain H1B, can I switch to H4 at that time?

Nscagony, there is a pinch of rudeness in your response. If you dislike helping others, please don't respond and I think we all can understand.
Click to expand...

That's the problem ... the employers will not pay during bench period and wont even admit it!

You can use the AP to return to the U.S. As long as your spouse maintains H-1 you can to rollback to H-4.
 
Manwithnoname,

Thanks much for your inputs, I sincerely appreciate it. If I use AP to reenter, can I change my status to H4 without leaving the Country, assuming that my Spouse continues to keep H-1B?

Once again, I greatly appreciate if you can shed some light on the above question.
 
Thank you so much.

I happen to notice in some other posts that if a person enters on AP (i.e., most recent entry is AP), he/she will not be able to change status within US. In my case, if I last entered on AP, does it mean that I cannot change to H4 even though my Spouse is maintaining H1B? Sorry for repeating the question, but I greatly appreciate if you can spare few minutes in providing the requisite clarification.

We all come to this Country in search of a dream and it is so nice to see many people like us helping each other.
 
No, it's just that you need to go outside the U.S. to get your H-4 visa first if you want to revert back to H-4.

One can argue that if your AOS application is denied, that means you did not successfully "adjust" status from non-immigrant to immigrant, and therefore you should revert back to your original nonimmigrant status without any action. But this is a kind of gray area even for attorneys if I'm not mistaken, and you should not rely on that assumption.

Just in case if you are not aware of, in DS-156 there is a question: "Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?" You did not know, but you clearly violated status. Therefore if you decide to apply for an H-4 visa, and you may have to explain yourself about your "out of status" thing one way or the other.
 
I think responses are a bit contradictory. My question was if I return on Advance Parole and I-485 eventually gets denied, can I change status within US to H-4 based on Spouse's H-1B regardless or my last entry to US (i.e., as a Parolee or based on a H-4 visa).

Underlying assumption is that Spouse continues to maintain H-1B.
 
If your last entry is H-4, you don't even have to "change" status to H-4 as long as the spouse's H-1B status is still valid. Changing status from parolee to H-4, that is tricky. Strictly speaking, if your I-485 gets denied, your parolee status will have become invalid by the time you receive the notice (of denial). Therefore you won't really be able to "change" status, because you are already out of status and COS requires you are maintaining valid status to change from.
 
JohnThomas82 said:
I think responses are a bit contradictory. My question was if I return on Advance Parole and I-485 eventually gets denied, can I change status within US to H-4 based on Spouse's H-1B regardless or my last entry to US (i.e., as a Parolee or based on a H-4 visa).

Underlying assumption is that Spouse continues to maintain H-1B.
Click to expand...

After you return to the US on AP, your spouse's employer can file a H-4 extension. If something goes wrong with I-485 application, you can travel out of the US, get the H-4 stamped (based on your spouse's H-1B visa) and re-enter.
 
manwithnoname said:
After you return to the US on AP, your spouse's employer can file a H-4 extension. If something goes wrong with I-485 application, you can travel out of the US, get the H-4 stamped (based on your spouse's H-1B visa) and re-enter.
Click to expand...

So, what you are saying is that if I return on AP and the I-485 is still pending I can file for a change of status to H-4 based on Spouse's H-1B without leaving the US?
 
You must log in or register to reply here.
Top