H4 to H1B Status Change

[utkarsh144]

Hi,

I entered in USA last year march with my son and wife. They were on H4. We all have i-94 expiry date as 9th Nov 2013. This year we have filed H1B for my wife and its approved and got ssn as well. She has not started her work as didn't get project yet. Mine and my son's extension is in process but we have not filed extension for my wife as she has approved H1B. Will there create any issue on status for my wife as she has not started work and we have not filed extension? I checked i-94 eligibility online but its still showing her expiry date as 9th Nov 2013 on H4 case. It doesn't showing her updated i-94 status(new date) on the system for h1b case. Do we need to take any action from our side? In her H1b approval copy, i-94 expiry date is of 2016.

[raghvi]

Hi,

I entered in USA last year march with my son and wife. They were on H4. We all have i-94 expiry date as 9th Nov 2013. This year we have filed H1B for my wife and its approved and got ssn as well. She has not started her work as didn't get project yet. Mine and my son's extension is in process but we have not filed extension for my wife as she has approved H1B. Will there create any issue on status for my wife as she has not started work and we have not filed extension? I checked i-94 eligibility online but its still showing her expiry date as 9th Nov 2013 on H4 case. It doesn't showing her updated i-94 status(new date) on the system for h1b case. Do we need to take any action from our side? In her H1b approval copy, i-94 expiry date is of 2016.

What do you mean not working because not having a project? What was the project on which basis she got the H1 approved in the first place? Many people mess up their immigrant status by attaching themselves to such consultancies.

If your spouse's H4 to H1 was filed as COS (Change of Status) and was approved then she should be working and getting paid. If H1 employer is not paying then she can file complaint to DOL. If she isnt getting paid she is basically out of status. This can be a big issue later on.

If her H4 to H1 was filed as consular process then she is pretty safe but only till 9-Nov-2013 as post 9-Nov-2013 she doesnt have any status H1 or H4. Ask her to talk to her employer.

If H1 was approved as COS she is out of status already.
If H1 was approved as consular then if she doesnt apply a H4 to H1 COS or H4 extension before 09-Nov-2013 she will go out of status.

This is my opinion not legal advice.

[utkarsh144]

H4 to H1B Status Change

What do you mean not working because not having a project? What was the project on which basis she got the H1 approved in the first place? Many people mess up their immigrant status by attaching themselves to such consultancies.

If your spouse's H4 to H1 was filed as COS (Change of Status) and was approved then she should be working and getting paid. If H1 employer is not paying then she can file complaint to DOL. If she isnt getting paid she is basically out of status. This can be a big issue later on.

If her H4 to H1 was filed as consular process then she is pretty safe but only till 9-Nov-2013 as post 9-Nov-2013 she doesnt have any status H1 or H4. Ask her to talk to her employer.

If H1 was approved as COS she is out of status already.
If H1 was approved as consular then if she doesnt apply a H4 to H1 COS or H4 extension before 09-Nov-2013 she will go out of status.

This is my opinion not legal advice.

H1 was filed as COS and its approved and we are searching for project right now. When you say 'If H1 was approved as COS she is out of status already.' does that mean she has no status right now in US?

[raghvi]

As per the spirit of the laws it should be the reverse. Employer should have Project/work in hand then only seek H1 for the employee. But then consultancies hardly follow the spirit of the law.

Yes, if COS was approved, she should be working and getting paid otherwise she is out of status and doesn't have any immigrant status.

This is my opinion not legal advice.

[utkarsh144]

What do you mean not working because not having a project? What was the project on which basis she got the H1 approved in the first place? Many people mess up their immigrant status by attaching themselves to such consultancies.

If your spouse's H4 to H1 was filed as COS (Change of Status) and was approved then she should be working and getting paid. If H1 employer is not paying then she can file complaint to DOL. If she isnt getting paid she is basically out of status. This can be a big issue later on.

If her H4 to H1 was filed as consular process then she is pretty safe but only till 9-Nov-2013 as post 9-Nov-2013 she doesnt have any status H1 or H4. Ask her to talk to her employer.

If H1 was approved as COS she is out of status already.
If H1 was approved as consular then if she doesnt apply a H4 to H1 COS or H4 extension before 09-Nov-2013 she will go out of status.

This is my opinion not legal advice.

As per the spirit of the laws it should be the reverse. Employer should have Project/work in hand then only seek H1 for the employee. But then consultancies hardly follow the spirit of the law.

Yes, if COS was approved, she should be working and getting paid otherwise she is out of status and doesn't have any immigrant status.

This is my opinion not legal advice.

Ooops!! So what would be best possible solution for this? We have only 4 days left for our i-94 expiry. I don't think so my employer will file extension for my wife in this 4 days.

[raghvi]

What is her employer saying, why arent they paying her? Work or no work, project or no project they should pay her after all they are the sponsor of the H1. If not you can complain to the DOL.

Most of the folks dont complain for fear of losing their H1. They employ a compromising/illegal solution by convincing the employer to run their payroll (some actually paying the employer to do so)

I would suggest you talk to an attorney who can advise you based on the situation.

This is my opinion not legal advice.