H4 to H1B while in USA - Unexpected Situation

[vinod_help]

May be this situation is very unique and unfortunately I got into this.


1. I applied for H1B while in India in 2015 quota(Opens on 1st Apr 2014) - I was informed by employer(X) during July-2014 that my H1B is not picked up in the lottery. Later I came to USA in Mar-2015 on H4 and applied for H1B in 2016 quota (Opens on 1st Apr 2015) while in USA. My employer(Y) informed that this time my petition has been picked up in the lottery but got RFE (Request for Evidence).

2. While I am looking for responding to 2016 quota RFE, my employer(X) came to know that my application for 2015 quota is also picked up in the lottery and also petition got approved from Oct-2014 to Sep-2017 and they some how missed to check that.

Questions:
======

1. I entered into USA on H4 and my I-94 shows the same. Is my approved I-797(2015 quota) is still valid as I entered to USA on H4 after my I-797 approval?

2. If it is still valid , then what process I need to follow to change the status from H4 to H1B and how to get stamped? ( My I-797 approval form shows consulate as Chennai)

3. Is my 2015 quota I-797 approval becomes obsolete as I entered on H4 to USA? If I am not willing to travel back to India for stamping, then only option I have is to respond to 2016 quota RFE?

4. There are NO paystubs run from Oct-2014 to till date. Is this an issue if I continue with my 2015 quota approval notice by skipping responding to 2016 quota RFE?

5. Any other option do you suggest?

Appreciate your help to conquer this situation effectively. I know this situation is very unique , but I need inputs from experts on this?

Thanks in advance!
Vinod.

[shervin143]

2. While I am looking for responding to 2016 quota RFE, my employer(X) came to know that my application for 2015 quota is also picked up in the lottery and also petition got approved from Oct-2014 to Sep-2017 and they some how missed to check that.
>>> Seriously? How could they miss that?

Questions:
======

1. I entered into USA on H4 and my I-94 shows the same. Is my approved I-797(2015 quota) is still valid as I entered to USA on H4 after my I-797 approval?
>>> Yes. It will remain valid unless revoked by the employer.

2. If it is still valid , then what process I need to follow to change the status from H4 to H1B and how to get stamped? ( My I-797 approval form shows consulate as Chennai)
>>> The employer will need to file a COS from H4 to H1B. You cannot begin working until the COS gets approved. You can get the H1B visa stamped whenever you leave U.S and want to re-enter back in H1B status. To stay and work in U.S, a COS is sufficient and a valid H1B visa is not needed.

3. Is my 2015 quota I-797 approval becomes obsolete as I entered on H4 to USA?
>>> Nope.

If I am not willing to travel back to India for stamping, then only option I have is to respond to 2016 quota RFE?
>>> No. The employer can file a COS from H4 to H1B.

4. There are NO paystubs run from Oct-2014 to till date. Is this an issue if I continue with my 2015 quota approval notice by skipping responding to 2016 quota RFE?
>>> That is not an issue since you were never on H1B status.

5. Any other option do you suggest?
Either file a COS from H4 to H1B and wait until it gets approved (or) leave the country, get the H1B stamped using the H1B approval notice and enter U.S in H1B visa.

[vinod_help]

shervin143

Thanks for suggestions.

Even it came as a surprise for me how my 2015 quota petition got missed out. Anyway, I will check with my employer to file COS.

Thanks a lot!
Vinod.

[vinod_help]

Consular Processing

shervin143

>>> The employer will need to file a COS from H4 to H1B. You cannot begin working until the COS gets approved. You can get the H1B visa stamped whenever you leave U.S and want to re-enter back in H1B status. To stay and work in U.S, a COS is sufficient and a valid H1B visa is not needed.


Question: I verified with my employer and they said that my 2015 quota H1B is applied through Consular Processing(India-Chennai) and it is not eligible for COS(change of status). Now , the only option I have is to respond to 2016 quota RFE? ( I am not willing to travel back to India now. )

Thanks in advance!

Thanks,
Vinod.

[shervin143]

Well, if you are not willing to travel now, then your employer will need to respond back to the RFE and if it gets cleared, then you can begin working from Oct 1st. If petition filed under 2016 CAP gets denied, then you have a backup option of using 2015 petition. The employer can either file an amendment to change your status from H4 to H1B using that petition or you can go out of the country, get the H1B stamped and return back.

shervin143

>>> The employer will need to file a COS from H4 to H1B. You cannot begin working until the COS gets approved. You can get the H1B visa stamped whenever you leave U.S and want to re-enter back in H1B status. To stay and work in U.S, a COS is sufficient and a valid H1B visa is not needed.


Question: I verified with my employer and they said that my 2015 quota H1B is applied through Consular Processing(India-Chennai) and it is not eligible for COS(change of status). Now , the only option I have is to respond to 2016 quota RFE? ( I am not willing to travel back to India now. )

Thanks in advance!

Thanks,
Vinod.

[vinod_help]

The employer can either file an amendment to change your status from H4 to H1B using that petition or you can go out of the country, get the H1B stamped and return back.

Thanks Shervin143.

1)But employer says, they can't file change of status while I am in USA as my 2015 quota petition is filed through consular processing. So, if my 2016 CAP petition denies, then the only option is go back to India and get stamping for H1B. Is that correct? or Employer can still file COS even it is consular processing?

2)As per 2015 quota petition the consular processing is at India, Chennai. So I have to go to the same consulate or I can travel to Canada and get the stamping done?

Thanks a lot!

Thanks,
Vinod.

[shervin143]

1)But employer says, they can't file change of status while I am in USA as my 2015 quota petition is filed through consular processing.
>>> It has to be consular processing since you were outside U.S at that time. But that doesn't mean they cannot file a COS now on that petition when you are inside U.S. If yor curreht employer is not willing to do that, then any new employer can do it as long as you can get a copy of that approval notice from your employer.

So, if my 2016 CAP petition denies, then the only option is go back to India and get stamping for H1B. Is that correct? or Employer can still file COS even it is consular processing?
>>> That is not correct. Employer can file a COS. However, if 2016 petition for the employer is declined, then the COS can also get declined for pretty much the same reason. So if 2016 petition gets declined, then the best option is to go get the visa stamped using the 2015 petition and return back (or) find a new employer and file the COS using the 2015 petition.

2)As per 2015 quota petition the consular processing is at India, Chennai. So I have to go to the same consulate or I can travel to Canada and get the stamping done?
>>> First time H1B stamping should be from your home country.

[vinod_help]

1)But employer says, they can't file change of status while I am in USA as my 2015 quota petition is filed through consular processing.
>>> It has to be consular processing since you were outside U.S at that time. But that doesn't mean they cannot file a COS now on that petition when you are inside U.S. If yor curreht employer is not willing to do that, then any new employer can do it as long as you can get a copy of that approval notice from your employer.

So, if my 2016 CAP petition denies, then the only option is go back to India and get stamping for H1B. Is that correct? or Employer can still file COS even it is consular processing?
>>> That is not correct. Employer can file a COS. However, if 2016 petition for the employer is declined, then the COS can also get declined for pretty much the same reason. So if 2016 petition gets declined, then the best option is to go get the visa stamped using the 2015 petition and return back (or) find a new employer and file the COS using the 2015 petition.

2)As per 2015 quota petition the consular processing is at India, Chennai. So I have to go to the same consulate or I can travel to Canada and get the stamping done?
>>> First time H1B stamping should be from your home country.

Thanks shervin143 for your suggestions. Highly appreciated!!


Thanks,
Vinod.