Complicated Situation H4->H1

[daffo]

I am in H1 visa and my wife is in H4. My H1 and my wife's H4 visa expired in 2013 we got our extended petition and new I94 valid till 2015. We are planning to apply for H1B visa for my wife in April 2014. We have a family emergency situation and thought of traveling to India. In that case we will have to get our H1 and H4 visa stamped before entering US.

1. If we are traveling to India before April 1, Can my wife's employer file her H1 petition/H4 to H1 status change when we are out of country?
2. Say, she got her H4 visa stamped in March 2014, Can she come back to the US in H4 visa after her employer filed her H1 in April?
3. Say, her employer is filing H1 in premium process, how soon should she return back to the US? (If answer to question 2 is YES)
4. Say, her employer is filing H1 in premium process and it got approved and is valid from Oct 1 2014. Can she travel to India between May - September, get H4 visa stamped, return to the US in H4 visa and start working with the approved H1 from
October 1?

Appreciate any response that helps. Thanks!

[raghvi]

I am in H1 visa and my wife is in H4. My H1 and my wife's H4 visa expired in 2013 we got our extended petition and new I94 valid till 2015. We are planning to apply for H1B visa for my wife in April 2014. We have a family emergency situation and thought of traveling to India. In that case we will have to get our H1 and H4 visa stamped before entering US.

1. If we are traveling to India before April 1, Can my wife's employer file her H1 petition/H4 to H1 status change when we are out of country?
2. Say, she got her H4 visa stamped in March 2014, Can she come back to the US in H4 visa after her employer filed her H1 in April?
3. Say, her employer is filing H1 in premium process, how soon should she return back to the US? (If answer to question 2 is YES)
4. Say, her employer is filing H1 in premium process and it got approved and is valid from Oct 1 2014. Can she travel to India between May - September, get H4 visa stamped, return to the US in H4 visa and start working with the approved H1 from
October 1?

Appreciate any response that helps. Thanks!

1. Status Change can be applied only while is in US. When you are outside US technically you dont have an immigrant status.Your spouse's employer would have to file it as Consular process.
2. Yes she can use her H4 as long as it is valid. Her H1 can only be activated upon a COS or visa stamping , and considering the travel I dont think you are planning to do either (COS/H1 visa stamping for your spouse).
3. If intention is to move to H1 from H1 start date , and avoid stamping, advisable to come back on H4 visa by March 20th, as she would have enough time to send across her H4 I-94 to the attorney so that teh attorney can file a COS H1 petition on 01-April-2014. Premium processing is not much relevant.
4. Yes, but for this is to work out the H1 petition has to be approved before her travel out of US. So assuming H1 petition (under normal quota) is filed in premium on 01-Apr-2014, if at all there is lottery, most likely normal processing results would be out only by approximately May mid, provided no RFEs. Once it is approved, she can travel, but she should return before COS start date.

This is my opinion not legal advice.