H1 transfer rejected and re-applied and got approved.Need VISA stamping or just I-94?

[Prasad Sistla]

Feb 12 - Applied for H1 transfer along with H4 transfer
Feb 14 - Got RFE for H1 transfer
Mar 1 - Left Company A and Joined the new company B
Apr 20 - Company B Responded to RFE with SOW
Apr 26 - H1 rejected( checked online) because SOW was effective from Apr-14 not from the date of LCA

Meanwhile Apr-1, my wife applied for H1 petition and COS(H4 to H1) with documents(old I-94) from my previous employer A. H1 got selected in lottery and is under processing.

Apr28 - Another H1 transfer filed(without H4) for me and got approved on May 22 stating the consulate Hyderabad.

June12 - Received the hard copy with out any I-94.

My company is asking me to get new I-94 by crossing border at Tijuan, Mexico. They also confirmed that I am not out of status as my H1 from company A is still valid.

Both of us have I-94 and VISA stamped from Company A(Me on H1 and my spouse on H4) until Sep-20-2014.

But I need a expert opinion before making a decision for Just getting an I-94 or Visa stamping.

1. Are we out of status from Apr 26? Was both of our Visa's automatically got cancelled?
2. Do I or both of us need Visa Stamping?
or
3. DO I or both of us just need a I-94?
4. Now is it legal if I get my I-94 alone and my spouse stays in US on H4 with old I-94 & VISA stamped until Sep20-2014? Will that be legal or out of status?
5. Is this consular processing and what options do I have here?

Reason I do not want my wife to get new I-94/Visa is that it would result in denial of change of her status(COS) from h4 to h1 that was filed in Apr. When the my spouse's H1 will be processed some time later by USCIS in Aug or Sep-2014 they will see that COS contains old I-94 from employer A, while she will have a new I-94.

[raghvi]

Feb 12 - Applied for H1 transfer along with H4
Feb 14 - Got RFE
Mar 1 - Left Company A and Joined the new company B
Apr 20 - Company B Responded to RFE with SOW
Apr 26 - H1 rejected(online) because SOW was effective from Apr-14 not from the date of LCA

Meanwhile Apr-1, my wife applied for H1 with documents(old I-94) from my previous employer A. H1 got selected in lottery and is under processing.

Apr28 - Another H1 transfer filed(without H4) for me and got approved on May 22 stating the consulate Hyderabad.

June12 - Received the hard copy with out any I-94.

My company is asking me to get new I-94 by crossing border at Tijuan, Mexico. Both of us have I-94 and VISA stamped from Company A until Sep-20-2014

1. Are we out of status from Apr 26? Was both of our Visa's automatically got cancelled?
2. Do I or both of us need Visa Stamping?
or
3. DO I or both of us just need a I-94?
4. Now is it legal if I get my I-94 alone and my spouse stays in US with old I-94 & VISA stamped until Sep20-2014? Will that be legal or out of status?
5. Is this consular processing and what options do I have here?

Reason I do not want my wife to get new I-94 is that it would result in denial of change of status(COS) from h4 to h1 in some time in Aug or Sep-2014, when the H1 gets processed completely.

Joining B without approval resulted in this mess. One should always apply transfer in premium and join only after approved.


1. Not from Apr 26, seems you are out of status from Mar 1.
2. Yes as its consular process. also, if your spouse is also wishing to be on H4 and already has a valid visa then no need of stamping.
3. You would need anew visa.
4. No she has to travel too. You being out of status since March first makes your spouse also out of status from that time.
5. None , you have to leave and get a new visa.

Advisable, that both you and your spouse go out of US, get respective H1 stamped and return. If successful you can return on H1 immediately but she can enter only around Sep 21 and start on H1 on 01-Oct-2014.

OR

both you and your spouse go out of US, get respective H1 and H4 stamped and return.Once in US, a H4 to H1 COS would need to be applied for your spouse for her to move to H1.

This is my opinion not legal advice.

[Prasad Sistla]

Raghvi - Option 2 and 4 from your answer seems to be contradictory. Both of us have VISA stamping till Sep-20-2014 with my previous petition from employer A? Can you explain more?

[raghvi]

Raghvi - Option 2 and 4 from your answer seems to be contradictory. Both of us have VISA stamping till Sep-20-2014 with my previous petition from employer A? Can you explain more?

I cannot see any contradiction. Even if you both have valid visa, you have not maintained valid status since Apr 26. Also , your transfer petition has got approved as consular process, so merely leaving and entering would not help. You would need to get a new visa stamping. On the other hand if your spouse wants to continue on H4 she need not go for fresh stamping , you getting a new valid H1 visa would be enough but I personally would suggest she also attend a new H4 visa stamped along with you.

As for your wife continuing to stay , it would not be valid as you are out of status and so is she. Also, if she wants to move to H1 either file a H4 to H1 after her return on H4 OR get a H1 stamping for herself and return.

This is my opinion not legal advice.

[meter111]

Transfer approved without I 94

Prasad , did you go for visa stamping? Or did you just cross the border? could you please update?