H4 to H1 in USA, traveling to India when h1 is expiring in few days before stamping

[ankuankit]

Hi Everyone,

I am not sure, if anyone has encountered this kind of situation. Please advise

My wife came to US with me on H4 in 2013, her h4 stamping was valid till april 2014. She got the sponsor to file her H1 in 2013 and got the h1 in lottery.

She changed 2 companies so far, and her latest H1 Petition(I797) is valid until 31st Dec 2015. Till now, we are staying in US with Valid passport and valid I94 valid upto 31st Dec 2015 that came along with Approval notice.

Now situation is we have to travel back to India beginning of Dec 2015 and we want to come back by 21st Dec 2015. and in the meantime we are planning for Visa interview for updated stamping. (I have changed the company and i have valid Petition till 2018) Her company is filing the extension in the month of September 2015 but in normal processing that will lead to situation where we will not be getting the petition before Jan 2016(worst case, 4 month of processing). So what should we do?

Will there be any problem occur, if we visit to US consulate in India having I797 with expiry date 31st dec 2015 and get it stamped or they will not agree on this situation?

I am trying to save premium processing fees if we are coming back on 21st Dec 2015 that is before expiration of her I797 Approval notice.

Let me know, if anyone encountered this kind of situation or can enlighten this situation.

Thanks
Ankit

[shervin143]

You are not supposed to travel out of the country when the extension is filed and pending with USCIS. So your wife will either need to file the petition, get it approved and then leave or will need to come back and then file the extension. Applying for a visa on a petition that will be valid only for 20-25 more days is not advisable. File the extension in premium, get it approved and then travel. That way, you will have an extended petition to appear for the visa interview and also the visa and I-94 will be issued for the duration of the extended petition.