H4 to H1b

[mrkavi]

Hi,
My spouse is in India on H4 status and will be coming to US in last week of April.
I am planning to file her H1b this April.
If her H1b application is picked in lottery, does she has to stay in India and get H1b stamped before starting her work in US.
Or else i had to get her to US before H1b application is filed.
Kindly suggest.

Thanks
Ravikanth

[Nattybone]

Hi,
My spouse is in India on H4 status and will be coming to US in last week of April.
I am planning to file her H1b this April.
If her H1b application is picked in lottery, does she has to stay in India and get H1b stamped before starting her work in US.
Or else i had to get her to US before H1b application is filed.
Kindly suggest.

Thanks
Ravikanth

Hello, Ravikanth.

She need not travel back to India for H1B stamping. If her H4 is valid (if visa granted), when in USA, she could do a Change of Status (COS) to H1B. She need not go to India for stamping for H1B. H1B comes into play in October, i am assuming / hoping her H4 will be valid till that time for her to switch status to H1B.

Hope this helps.

Wishing you luck.

Cheers,

[mrkavi]

H4 to H1b

Hello, Ravikanth.

She need not travel back to India for H1B stamping. If her H4 is valid (if visa granted), when in USA, she could do a Change of Status (COS) to H1B. She need not go to India for stamping for H1B. H1B comes into play in October, i am assuming / hoping her H4 will be valid till that time for her to switch status to H1B.

Hope this helps.

Wishing you luck.

Cheers,

Thanks for the reply,

She has her H4 visa till September 2016.
Change of status means u need to apply for H1b transfer from one employer to other.
The reason i am asking is we will be already paying for H1b from present employer.
Please suggest.

Thanks
Ravikanth

[raghvi]

If one applies H1 while outside US, it will be processed as consular process. Later on, even if she enters US on H4, in order to move to H1 her employer would need to file H4 to H1 COS, and she can work only if that is approved.

If you want to avoid stamping, I would suggest she apply H4 to H1 as a COS. For that to happen she has to be in US prior to April 1st, or more logically much before April 1st 2014 considering the time for paper work preparation by the attorneys.

This is my opinion not legal advice.

[mrkavi]

H4 to H1b

If one applies H1 while outside US, it will be processed as consular process. Later on, even if she enters US on H4, in order to move to H1 her employer would need to file H4 to H1 COS, and she can work only if that is approved.

If you want to avoid stamping, I would suggest she apply H4 to H1 as a COS. For that to happen she has to be in US prior to April 1st, or more logically much before April 1st 2014 considering the time for paper work preparation by the attorneys.

This is my opinion not legal advice.

Thanks for the Reply,

If she comes in mid-april or last week of april, can she go for stamping to canada or mexico before starting her work.

Thanks,
Ravikanth

[Nattybone]

Thanks for the reply,

She has her H4 visa till September 2016.
Change of status means u need to apply for H1b transfer from one employer to other.
The reason i am asking is we will be already paying for H1b from present employer.
Please suggest.

Thanks
Ravikanth

Hello, Ravikanth.

Change of Status (COS) means changing from one status to another. When you enter USA, you mention your purpose of visit - according to the visa stamp on passport and the purpose of visit, an I94 is issued. When one enters on a particular visa stamp and with a specific purpose, e.g.: I enter on F1 visa (student) and say at Port of Entry that i am here to study, i will be allowed a F1 entry and an I94 will be issued.

Now, my legal stay or status in the USA is subject to my maintaining the criteria of F1 visa, i.e. paying University Fee, attendance etc. Should i fail to meet the criteria of F1 (or whichever visa i enter with), i would lose my legal status in USA.

Now, COS is when you enter on Visa A and then would like to switch to another category while in the USA. if your wife enters on H4 and then tries to get an H1 while remaining in the USA, it is called Change of Status. If she decides to go to India and get an H1B stamp then there is no COS as she would next time be entering an maintaining H1B visa and status. If she chooses to, later on, switch to H4 from H1 while being in the USA, it would again be called COS.

I hope this helps.

Wishing you luck.

Cheers,

[raghvi]

Thanks for the Reply,

If she comes in mid-april or last week of april, can she go for stamping to canada or mexico before starting her work.

Thanks,
Ravikanth

First time H1 stamping is recommended to be in home country. What is the concern on coming in before April 2014 and applying H1 as COS?

This is my pinion not legal advice.

[mrkavi]

H4 to H1b

First time H1 stamping is recommended to be in home country. What is the concern on coming in before April 2014 and applying H1 as COS?

This is my pinion not legal advice.

@Nattybone

Thanks for the feedback.

@ Raghvi,

She has her brother's marriage in the 1st week of April. Thats the reason she will be coming here in mid week of April.
So what would you suggest the better option.

Thanks

[raghvi]

Due to rush of H1, I am of the opinion that to get any shot at H1 one should ensure H1 application documents reach USCIS on 01-April-2014 one should avoid delay beyond that.

As your spouse would be outside US on 01-April-2014 her H1 would be filed as consular process. She can enter US on her H4 visa (as your dependent) towards April end and later if H1 is approved, file an amendment from Consular process to Change Of Status. If it is approved, she wouldnt need to go out of US to get on to H1.

Changing from consular to COS needs valid justification from employer and is at the discretion of USCIS.


This is my opinion not legal advice.

[mrkavi]

Due to rush of H1, I am of the opinion that to get any shot at H1 one should ensure H1 application documents reach USCIS on 01-April-2014 one should avoid delay beyond that.

As your spouse would be outside US on 01-April-2014 her H1 would be filed as consular process. She can enter US on her H4 visa (as your dependent) towards April end and later if H1 is approved, file an amendment from Consular process to Change Of Status. If it is approved, she wouldnt need to go out of US to get on to H1.

Changing from consular to COS needs valid justification from employer and is at the discretion of USCIS.


This is my opinion not legal advice.

Thanks for the suggestion.
Will speak to the employer and confirm.

Thanks