H1B RFE and Travelling outside country

[simpleecool]

Hi All

I am on L2 Visa currently and it is getting expired by Oct1. I have applied H1B this year. Due to family emergency, I had to travel to India from Apr 10 to April 27 while H1B was getting processed. I got an RFE on July1 for Employer Employee relationship and also it was said that Change of Status would not be provided.

My consultancy told me about the RFE only by end of August and finally the documents/response reached USCIS Vermont on Sep 18. I converted to premium. The check was cashed on 21st September. Now its 26th and its still in 'RFE Response Received' stage. I will be out of status by Oct1 and so I booked my tickets to travel out of country on September 29.

Please let me know what is the right thing to do? I am not sure if I can legally stay in the country while H1B is in RFE. Or should I go back to India , stamp the Visa and come back? My employer is telling me to travel since anyway I will have to go out of country for stamping and come back. I don't want my H1 to be again denied because of the travel while its processing

Also, my childs H4 visa is still in initial review stage. It is on my husbands H1 which is already approved. My child and I traveled together to India from April 10 to 27. Is her Visa in this status even now because of the travel? How can we expedite this?

[shervin143]

If your husband is in H1B status, then how come you are in L2 status right now? There is no L1 without the primary applicant being in L1 status.
Are you saying that your husband's is current in L1 status, but his status will change to H1B on Oct 1st?

When did you file your child's COS from L2 to H4? Was it filed before your left to India? When does the child's I-94 expire?

When is your current I-94 expiring?

Bottom line, you cannot stay beyond your current I-94 expiry date unless a COS from L2 to H4 is filed before your I-94 expiry date. Your H1B even if it gets approved, as it clearly states, will not come with a new I-94 attached making it a consular approval. Which means, the H1B is not active unless you leave the country and return back in H1B visa. There isn't enough time for you to file your COS from L2 to H4. Advisable to leave before your I-94 expiry date to avoid illegal stay.

[simpleecool]

My husband is in L1 now and his H1 is valid from Oct1.Mine and daughters I94 is valid till may 2016. My daughter and I are on L2 now..

My daughters H4 is under my spouses H1.

[shervin143]

When was your daughter's change of status from L2 to H4 filed? Was that filed before you took her to India or after coming back from India?

My husband is in L1 now and his H1 is valid from Oct1.Mine and daughters I94 is valid till may 2016. My daughter and I are on L2 now..

My daughters H4 is under my spouses H1.

[simpleecool]

My daughters H4 was filed before travelling to India..

[shervin143]

Well, in that case her COS from L2 to H4 will most likely get denied since you abandoned the COS by leaving the country. Both you and your daughter should leave the country before Oct 1st (before your husband's status changes from L1 to H1B). Both you and your daughter can get her H4 visa and return back in H4 visa which will put you back on H4 status. Later when the H1B gets approved for consular process (provided the RFE gets cleared), you can either leave the country and return back in H1B visa and begin working immediately or the employer can file a COS again from H4 to H1B and when that gets approved, you can begin working.

Alternatively, you can leave the country and wait outside until you get the result on your H1B petition. If H1B gets approved, you can appear for the H1B visa and enter in H1B. If it gets denied, then you can apply for the H4 visa and enter in H4 and be a dependent.

My daughters H4 was filed before travelling to India..

[simpleecool]

Thank you for the reply.
Will my visa be denied because I am travelling to India while it is being processed ??

[shervin143]

No. It will have no impact on your visa stamping. Visa stamping will be an issue only if you are out of status on L2 (Staying on L2 past Oct 1st) or if your stay is illegal (Staying past your I-94 expiry date).

Thank you for the reply.
Will my visa be denied because I am travelling to India while it is being processed ??

[simpleecool]

Thanks.. But I am getting so confused because people are telling that traveling out of country while H1B is in RFE is risky and could result in denial.. Pls share your thoughts..

[shervin143]

You have already traveled out and what harm could happen now on the 2nd time? Your H1B will anyhow get approved only for consular process and will not get approved as COS. Your COS is already denied since you traveled outside. If the RFE documents are in order, then your H1B will get approved for consular process. Do you want to stay past your I-94 expiry date and accumulate illegal stay? Illegal stay will have bigger impact on your future petitions and visa stamping. Avoiding illegal stay is more important that trying to get the H1B approved at this time. You leaving the country will have no impact on your H1B petition, since it is now a petition for consular process.

Thanks.. But I am getting so confused because people are telling that traveling out of country while H1B is in RFE is risky and could result in denial.. Pls share your thoughts..

[simpleecool]

Wow thanks so much for the reply.. Now I am clear about it..

[harleen236]

H1B RFE Status

Please let me know about your H1B RFE status that you received from USCIS. I'm on H4 visa and had applied for H1B this year. But due to family emergency, I'd to travel to India in June, 2015. I received an RFE in July, 2015 for Employer-Employee relationship and Change of Status was denied.
My consultancy replied for the RFE in September, 2015 and the status was changed to 'RFE reply received'. There has been no update on the status yet. I'm still waiting and hoping for it to be approved. It would be great if you can let me know about your visa status and if you had to travel to India again for visa stamping. I hope it got approved!!! Thanks!!!

[simpleecool]

Hi Harleen236

My visa got approved. I had to travel out of USA for stamping since my COS was denied.. Hope u get your approval soon..

[Ajay Saladi]

Hi All My Dear Brothers/ Sisters

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[harleen236]

H1B RFE Reply

Thanks a lot for your reply!!! Hoping to receive my approval soon.