Travel when H4 to H1B is applied

S

saki78

New Member
Hi All,

Please help me.My H1B was applied on April 6th on Regular processing.
We are going to India from May 9th to June 7th.
Tomorrow we are booking the tickets,It will very helpful if you assisst me...We were thinking that
1.In regular processing it takes 2-3 months for H1B to be processed,so I can go out on H4 and come on H4 quickly,before the H1B even gets approved.Is this possible???
2.Even if the H1B is approved before I come back to US ,I can again come on H4 and apply for change of status from H4 to H1 without any stamping.Is it necessary to get stamping for chane of status...iam not M.S iam only B.E?
3.or wait till the H1B gets approved and get all the valid papers,then go to India in september or october get the stamping and come on H1B.Here the doubt is:I can only start working from october...so I won't be having any paystubs.How the stamping is possible?Is there any possiblity of fresh H1B getting rejected?

I appreciate your valuable reply
 
saki78 said:
1.In regular processing it takes 2-3 months for H1B to be processed,so I can go out on H4 and come on H4 quickly,before the H1B even gets approved.Is this possible???
Click to expand...
Yes, you can.
2.Even if the H1B is approved before I come back to US ,I can again come on H4 and apply for change of status from H4 to H1 without any stamping.
Click to expand...
YOu can enter the US with H4, but since you left the US before decision on change of staus is made, your COS application is considered abandoned. YOu need to travel and get H1 stamp before starting working with H1.
3.or wait till the H1B gets approved and get all the valid papers,then go to India in september or october get the stamping and come on H1B.
Click to expand...
It is the best. If your change of status is approved before you leave and you come back before H1 start date, you do not need H1 stamp.
 
GotPR? said:
Yes, you can.

YOu can enter the US with H4, but since you left the US before decision on change of staus is made, your COS application is considered abandoned. YOu need to travel and get H1 stamp before starting working with H1.

It is the best. If your change of status is approved before you leave and you come back before H1 start date, you do not need H1 stamp.
Click to expand...

GotPR,

Can you please help me in below situation:

Am I out of status?

Here is my situation:

I had a valid visa and I-94 (say 123 was the I-94 number) with company A till 06/14/2004.
I went to India on 12/25/2003 and submitted above I-94 at airport.
My company A applied for H1 extension on 01/12/2004 while I was in India.
I came back from India on 01/26/2004 and received new white I-94 (say 456 was the number) valid till 06/14/2004.
My H1 extension got approved on 06/07/2004 valid from 06/15/2004 till 12/22/2006 having I-94 valid till 12/22/2006 with 123 as number on I-94.
On 06/25/2004 I applied for H1 revalidation with in US and got 221(g) for unknown reason.
Am I out of status right now or still on H1 status?

I appreciate your help.
Thanks,
 
I do not remember when was the last day for revalidation in the US. It was June or July 2004, and your case might not reach St Louis in time and that might be the reason of denial(not sure, though).
Visa revalidation is for stamping and stamp and status is two different thing.
Even though one does not have valid stamp, one can be in legal status.
I believe you are NOT out of status, but just confirm with lawyer.
 
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Has anyone Travelled after H1B approval before future start date

Iam on H4 now...got the H1B approval notice.
Planning for a india trip before 1st Oct 2006.
Can I go to India on H4 and come back with H4 before Oct 1st 2006,since my H1B is only effective from Oct 1st 2006.Will I have any problem?
"The travel does not invalidate the previously-approved USCIS change of status effective from a future date. This is because the last action regarding the person's status governs."
This is from http://www.murthy.com/mb_pdf/050605_P.html
posted on May 06 2005 ...is it effective now?
According to this I can travel on H4 and come back on H4 before Oct 1st,then start working from Oct 1st without any stamping.Is that right?
Has anyone done this?
Plz reply Thanks
 
saki78 said:
Iam on H4 now...got the H1B approval notice.
Planning for a india trip before 1st Oct 2006.
Can I go to India on H4 and come back with H4 before Oct 1st 2006,since my H1B is only effective from Oct 1st 2006.Will I have any problem?
"The travel does not invalidate the previously-approved USCIS change of status effective from a future date. This is because the last action regarding the person's status governs."
This is from http://www.murthy.com/mb_pdf/050605_P.html
posted on May 06 2005 ...is it effective now?
According to this I can travel on H4 and come back on H4 before Oct 1st,then start working from Oct 1st without any stamping.Is that right?
Has anyone done this?
Plz reply Thanks
Click to expand...

Hi,

I am under the same situation so I talked to a friend who went back to India under the same circumstances. He and his wife travelled back to india with his wife's h1b approved (had to get premium to get it approved).
The they went to india and then came back from india to US with her wife on H4 itself. The h1b status takes effect only on the start date mentioned on the h1b petition.
He did NOT got the h1b stamping done for her wife.

Regds
 
unitednations said:
Did you see this disclaimer?

USCIS Letter Guidance Helpful but Not Legally Binding
©MurthyDotCom
This analysis was provided by the USCIS in the form of letter guidance. Such guidance does not carry the binding force of law or regulation and generally is given less weight than even a USCIS policy memo. In the absence of any other USCIS guidance, however, it is a useful resource that is available and the only option for a person who needs to travel abroad under such circumstances. We also find that the USCIS and Legacy INS have given considerable weight to such guidance letters and enforced them. Many complex issues of U.S. immigration law have only such letters as this on which people can rely on in the absence of law or regulations.
©MurthyDotCom

Do you want to know why she has this discliamer? Efrain Hernandez (same person who wrote this memo) had written a memo back in 2003 regarding three year indian degree and u.s. 4 year degree for purposes of person meeding education/experience requirement for greencard purposees.

Attornies would use this memo in RFE and appeal. USCIS and appeals office basically said thank you for the toilet paper. Who is Efrain Hernandez? and his memo is not binding on them and they pointed to another memo saying unless it is precedent or binding then they don't care for it.

Therefore, use at your own risk. The last action has always been interpreted to what uscis approved for you or how you entered the country.

Put it this way, if you did enter on h-4 from the time of h-1 approval until October 1, 2006 but your employer didn't pay you or you weren't meeting the terms of h-1 then you would have some issue. However, it is easier to support in law that your last action was h-4 after approval of h-1.

As I said above; that disclaimer is there for a reason. If you want to risk later or the memo gets rescinded or USCIS uses it as garbage then you don't have anything to argue on.
Click to expand...

Unitednations,

There is one more opinion of Effren Hernandez, Director of Business Division of USCIS in Washington, D.C. not on COS but about last action rule. I took the QA from www. immigrationlaw.com.
Do you think below all is BS in eyes of USCIS?
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Q-60 (03-09-2006): I have been working in H-1B status for several years. When I started H-1B status, two different companies filed and obtained H-1B petitions on my behalf. Out of the two companies, I chose Company Poor and worked with the Poor company. In March 2005, I left and returned to the U.S. and resumed my employment with the Poor company. H-1B was valid until January 2006. Unfortunately, I was laid-off by the Poor company and joined the Second company based on the existing approved H-1B petition which is valid until November 2006. I wonder whether I am out of status. What is my course of action at this time? A-60: Your question involves two issues: One is whether you can continue a H-1B status when you change to a new employer that has already obtained H-1B petition for you simultaneously with your current employer. This often happens when you have two approved H-1B petitions and take one of the two jobs and move to the second job or after you move to the second job and return to the first employer. There is no specific regulation on this issue, but this issue has been handled by the opinion of Effren Hernandez, Director of Business Division of USCIS in Washington, D.C who opined that no matter how many approved petitions an alien has by different employers for the same alien, all of these approved petitions remain valid and the alien can change from one of these employers to another of these employers without filing a new H-1B petition.. Accordingly, there are many H-1B aliens who changed the job to the second H-1B employer and moved back to the first employer without filing a new H-1B petition. This rule applies when you remain in the United States. However, you have a different issue involving your overseas trip and returning with a new I-94. This is an issue of so-called "last action theory." According to this theory, I-94 status is determined by the "last action" taken by the DHS. For instance, if a H-1B alien departs with the Service Center approved H-1B approval notice with a new I-94 at the bottom changing from L-1B to H-1B or F-1 OPT to H-1B and returns from the overseas trip with a new I-94 issued by the immigration inspector at the airport giving L-1B or F-1 because of a number of issues, the I-94 which was issued at the airport is the "last action" of the DHS and it determines the alien's nonimmigrant classification as well as the duration of permitted stay in the United States. This last action theory has been strictly enforced for years by the legacy INS and the current USCIS or DHS when it involved a change of nonimmigrant status. However, they applied somewhat different standards when it involved not change of nonimmigrant classification but extension of the same nonimmigrant status or just change of employment in the same nonimmigrant classification. In these cases, the INS or USCIS have opined in various situations that such last action would not affect change of employment using a valid H-1B petition after returning from the overseas trip. The typical opinion involves John Brown letter which was written in response to this reporter's letter. This opinion appears to be followed by the agency. It appears that you case falls under this category. There is, however, still lingering unresolved issue as to how different officials will take it differently when the I-94 which was issued by the inspector at the airport constituted the "last" action of the government agency. Accordingly, just for safeside, you may feel comfortable by leaving and returning to the U.S. obtaining a new I-94 at the airport or port of entry. This can be achieved if you have a valid H-1B visa in your passport. If you do not, then you can still travel to Canada or Mexico and return within 30 days with a new I-94 issued at the time of returning. This should happend within 180 days before your Poor company's H-1B petition expiration date. There are some aliens who are not eligible for the automatic visa revalidation when one visits Canada and returns to the U.S. within 30 days. But India is not one of those ineligible nationalities. For the unsettled second issue, lawyers would recommend you to make such trip as soon as possible. Good luck.

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H4 Stamping without H1 approval notice

Hi,

My wife is on H4 and I am on H1(8th year extension).She has gone to India and would be getting her H4 Visa stamped at US consulate.

She does not have Original H1B approval notice with her but she has photocopy of the H1B approval notice.She also has her Original H4 approval notice.

Can she get her H4 visa stamped with these papers ?

For Visa appointment it is mentioned that they need Original H1B Approval notice also

I have 2 options
a) Get my H1B extension thru premium processing and send her original approval notice

b) Let her go to US consulate with the papers she has right now ....


Pls. advise

Thanks.
pls advise.
 
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