Change of Status - H1B to H4 - No visa stamping in passport

[mystique84]

Hi all,

I first entered the US in Sep 2010 with a H4 visa stamped in my passport. My change of status to F1 was approved in Sep 2011. I went for F1 visa stamping in my home country which is valid until Oct 2016. I started working on OPT in June 2012. The last time I went to India in Feb 2013, I returned on the same F1 visa. My I94 has F1 stamped on it and validity until "Duration of Status". My employer applied for H1B in April 2013 which was approved in June 2013. The I797A approval notice had an I94 attached with validity until Sep 2016. Technically, my H1B status began on Oct 1st 2013 but I do not have an H1 visa stamping in my passport.

Now I resigned from my job this week (last date of employment 02/28/14) and am planning to go back to H4 status based on my husband's approved I 797. His H1 stamping in the passport is from Employer A but he is currently working for Employer B and has an approval notice for employment with B.

I understand that I need to file I 539 but I am confused as to which documents I should be sending:

1. Do I send the I 94 I received during my last entry into US or the I 94 attached to my I 797 approval notice?

2. Should I send a copy of my husband's visa even if it is not from his current employer and does not match his latest I 797?

3. Should I send my I 20s?

4. Should I send all of my husband's previously approved I 797 notices?

Any help in this matter is much appreciated.

Regards

[raghvi]

Hi all,

I first entered the US in Sep 2010 with a H4 visa stamped in my passport. My change of status to F1 was approved in Sep 2011. I went for F1 visa stamping in my home country which is valid until Oct 2016. I started working on OPT in June 2012. The last time I went to India in Feb 2013, I returned on the same F1 visa. My I94 has F1 stamped on it and validity until "Duration of Status". My employer applied for H1B in April 2013 which was approved in June 2013. The I797A approval notice had an I94 attached with validity until Sep 2016. Technically, my H1B status began on Oct 1st 2013 but I do not have an H1 visa stamping in my passport.

Now I resigned from my job this week (last date of employment 02/28/14) and am planning to go back to H4 status based on my husband's approved I 797. His H1 stamping in the passport is from Employer A but he is currently working for Employer B and has an approval notice for employment with B.

I understand that I need to file I 539 but I am confused as to which documents I should be sending:

1. Do I send the I 94 I received during my last entry into US or the I 94 attached to my I 797 approval notice?

2. Should I send a copy of my husband's visa even if it is not from his current employer and does not match his latest I 797?

3. Should I send my I 20s?

4. Should I send all of my husband's previously approved I 797 notices?

Any help in this matter is much appreciated.

Regards

As you are on H1 you cannot just resign without first filing a COS to H4 or any other visa type. If your last date falls before receipt of COS to H4 you would go out of status. Being out of status you would not be able file a COS to H4 without needing to leave US and return on a a valid H4 stamp.
1. I-94 attached to your I797 as that was the last action.
2. You should send your spouse's latest I797 along with the latest I-94 appended at the bottom of his I797.
3. I dont think those are required now that you have moved to H1.
4. Not required.
5. You also do need to send your latest W2 and pay stubs to prove your valid H1 status.

This is my opinion not legal advice.

[mystique84]

As you are on H1 you cannot just resign without first filing a COS to H4 or any other visa type. If your last date falls before receipt of COS to H4 you would go out of status. Being out of status you would not be able file a COS to H4 without needing to leave US and return on a a valid H4 stamp.
1. I-94 attached to your I797 as that was the last action.
2. You should send your spouse's latest I797 along with the latest I-94 appended at the bottom of his I797.
3. I dont think those are required now that you have moved to H1.
4. Not required.
5. You also do need to send your latest W2 and pay stubs to prove your valid H1 status.

This is my opinion not legal advice.

Thank you for your reply. I am planning to send in the application tomorrow so that it reaches USCIS before the expiry of my status on Friday.