Valid H4 visa - I-539 in progress - can she travel out of US?

[usimmigrant2009]

My wife has a valid H4 visa based on my H1 on a previous employer.It is valid till aug 2010. She subsequently had her adjustment of status from H4 to H1 and worked briefly for her employer. She lost her job, so filed for I-539 (adjustment of status) from H1 to H4 based on my current H1-B (with my new employer). That application is in process. Now, we have a cruise trip planned next month which would take us to Bahamas (out of US). So here are my questions:

1. Can she travel on her still valid H4 visa stamped on her passport?
2. Does this travel in any way invalidate her current I-539 process on the basis of abandonment?

Any help would be appreciated.


thanks,
usimmigrant2009.

 

[jetector]

It's better that she doesn't travel until you hear from her change of status (COS) application with your H-1B transfer. Because there might be a gap of time between her job loss and the filing of the application to change status, there is no guarantee that the application will be considered timely filed. If they deny her COS because of untimely filing, she is required to obtain a NEW visa stamp at the consulate abroad despite her current valid stamp.

Also, although technically speaking, she may travel and apply for entry using her current visa stamp and showing your H-1B receipt notice, once she departs the US, her current COS case for H-4 will be automatically abandoned and therefore denied.

A good way around your problem would be to convert your H-1B case into premium processing and it will also premium process your wife's case.

 

[ginnu]

My wife has a valid H4 visa based on my H1 on a previous employer.It is valid till aug 2010.
She subsequently had her adjustment of status from H4 to H1 and worked briefly for her employer.
--------------------"adjustment of status" is filing I-485. She changed her status from H4 to H1.

She lost her job, so filed for I-539 (adjustment of status) from H1 to H4 based on my current H1-B (with my new employer). That application is in process. Now, we have a cruise trip planned next month which would take us to Bahamas (out of US). So here are my questions:

1. Can she travel on her still valid H4 visa stamped on her passport?
------------------------Yes
2. Does this travel in any way invalidate her current I-539 process on the basis of abandonment?
--------------- when she enter US then she should get new I-94 based on H4 status. if she show her H4 visa stamp valid till aug 2010 then her new I-94 will be valid till aug 2010 But if she show H4 Visa stamp AND slso show your LATEST H1 approval notice then she will get I-94 till your Latest H1 approval notice.
Any help would be appreciated.


thanks,
usimmigrant2009.

------------------

 

[usimmigrant2009]

It's better that she doesn't travel until you hear from her change of status (COS) application with your H-1B transfer. Because there might be a gap of time between her job loss and the filing of the application to change status, there is no guarantee that the application will be considered timely filed. If they deny her COS because of untimely filing, she is required to obtain a NEW visa stamp at the consulate abroad despite her current valid stamp.

Also, although technically speaking, she may travel and apply for entry using her current visa stamp and showing your H-1B receipt notice, once she departs the US, her current COS case for H-4 will be automatically abandoned and therefore denied.

A good way around your problem would be to convert your H-1B case into premium processing and it will also premium process your wife's case.

Hi jetector,
My H1 transfer is already approved. We filed for her I-539 a few days after she lost her job (project). I have heard about abandonment, but wasn't sure if it applied also if she has a valid H4 visa. My interpretation is based on the fact that a valid H category visa is required to re-enter US, but H1 to H4 is just a change in status in the same "H visa" category. Your thoughts?

 

[usimmigrant2009]

------------------

Hi Ginnu,
Thanks for your response. Are you aware of any ramification during Green Card processing if they come to know that she travelled in/out of the country during her I-539 processing? Also, can we request an advance parole for travel based on the I-539 in-process status?

Thanks,
Parag

 

[ginnu]

Hi Ginnu,
Thanks for your response. Are you aware of any ramification during Green Card processing if they come to know that she travelled in/out of the country during her I-539 processing? Also, can we request an advance parole for travel based on the I-539 in-process status?

Thanks,
Parag

if her I-485 is pending then she can go out of US. one can get AP if I-485 is pending and AP approval may take 2-3 months. AP need to be approved when she is in US. She can use AP for entry to US.

If she filed I-539 for H4 extension and goes out of US that is not a problem.
If she filed H1 to H4 Change of status then Change of status is Abandoned if one goes out before approval.
You posted that she worked and then lost project? on what status she was working? EAD or H1?

 

[usimmigrant2009]

if her I-485 is pending then she can go out of US. one can get AP if I-485 is pending and AP approval may take 2-3 months. AP need to be approved when she is in US. She can use AP for entry to US.

If she filed I-539 for H4 extension and goes out of US that is not a problem.
If she filed H1 to H4 Change of status then Change of status is Abandoned if one goes out before approval.
You posted that she worked and then lost project? on what status she was working? EAD or H1?

She was working on H1. We have filed H1 to H4 Change of Status. Today, I called up USCIS and asked the same question - the customer service person said that she can travel outside US even if her I-539 change of status is in progress as her H4 visa is still valid. The travel won't affect it. Now I would like to believe it, but would call back again tomorrow and talk to a different customer service rep to see if both are consistent in their replies.
ginnu - Have you read about change of status abandonment during I-539 in process or do you know someone who's I-539 was denied due to outside US travel?

 

[jetector]

Hi jetector,
My H1 transfer is already approved. We filed for her I-539 a few days after she lost her job (project). I have heard about abandonment, but wasn't sure if it applied also if she has a valid H4 visa. My interpretation is based on the fact that a valid H category visa is required to re-enter US, but H1 to H4 is just a change in status in the same "H visa" category. Your thoughts?

If your transfer is already approved that changes the entire picture. She is OK to travel and return on the valid visa stamp on H-4. She must carry a copy of yoru approval and the CBP officer should give her entry until the expiration date of your new approval even beyond the expiration date of her visa stamp.

As to the I-539 request for change of status, will be denied upon departure due to abandonment, however, this affects absolutely nothing.

Regards.

 

[ginnu]

She was working on H1. We have filed H1 to H4 Change of Status. Today, I called up USCIS and asked the same question - the customer service person said that she can travel outside US even if her I-539 change of status is in progress as her H4 visa is still valid. The travel won't affect it. Now I would like to believe it, but would call back again tomorrow and talk to a different customer service rep to see if both are consistent in their replies.


ginnu - Have you read about change of status abandonment during I-539 in process or do you know someone who's I-539 was denied due to outside US travel?

http://www.uscis.gov/files/pressrelease/Travpub.pdf

 

[hvganesh]

Similar problem - F2-H1-F2 - Please help

I am facing a similar situation. I would like to know if there was any problem when she traveled?

My wife came into US in F2. Her F2 visa is valid until 2013. She changed her status to H1 in Oct 2009 but have not gotten a H1 stamping yet. She has applied for a change of status again from H1 to F2 in mid-Jan. However, she hasn't heard from USCIS yet.

She wants to go out of the country and come back in F2. Does she have to get F2 stamping again - as she already has a valid stamping until 2013? Will the border officials inquire about her H1 status? She doesn't have paystubs since she filed Change of status.

Thanks a lot.