H4 to H1b Visa stamping and travel to India while h1extension in progress

[swethavinnu]

Hi All, Can you please help me on my current situation.

I travelled to USA on Nov-2013, on H4 and got my I 94 till 06-25-2016. In USA i got my H1B approved and have been working ever since. My H1B approved till Dec-15-2015. My employer applied extension in premium processing, it's still in process. Due to emergency in India, i travelled to India (Currently India).

1) Since my extension is still in process, i will have to wait for my approval and once it is approved then attorney will get approval hard copy in two weeks time, then it will be sent to me in india, the whole process take apprx 20 days to One month from today. Once i receive hard copy of approval then i need to book visa appointment(i can't book visa appointment unless i know my petition start and end dates) in Hyderabad consulate and attend interview, this all seem to be very lengthy process, is there any way that i can attend visa interview early.? I need to travel US asap.

2) how about my I94, since iam in India while extention is still inprocess, how the I94 will be issued?

3) Am thinking another option- I have my H4 visa in my passport which is valid till 06-25-2016, can i travel to USA immediately on this visa and have my client apply for H1B petition? is it good way.? Note- i have H1 approval notice valid till 12-15-2015, so i will be cap-exempt.

4) Can you suggest me any other best options or anything that i need to take care for visa interview or at port of entry.? Thank you.



--
Thanks& Regards,
Swetha,

[shervin143]

1) Since my extension is still in process, i will have to wait for my approval and once it is approved then attorney will get approval hard copy in two weeks time, then it will be sent to me in india, the whole process take apprx 20 days to One month from today. Once i receive hard copy of approval then i need to book visa appointment(i can't book visa appointment unless i know my petition start and end dates) in Hyderabad consulate and attend interview, this all seem to be very lengthy process, is there any way that i can attend visa interview early.? I need to travel US asap.
>>> No. Those are the process and you need to follow that.

2) how about my I94, since iam in India while extention is still inprocess, how the I94 will be issued?
>>> I-94 will be issued when you re-enter U.S. It will matching ether the new petition expiry date or your visa expiry date (If you go for stamping, visa will be issued matching the petition expiry date).

3) Am thinking another option- I have my H4 visa in my passport which is valid till 06-25-2016, can i travel to USA immediately on this visa and have my client apply for H1B petition? is it good way.? Note- i have H1 approval notice valid till 12-15-2015, so i will be cap-exempt.
>>> Yep, you can do that. Your status will be H4 and you cannot work until the employer files a COS again from H4 to H1B and that should get approved before you can begin working. Previous H1B filed in premium will become useless. It will take about a month for the whole process from H4 to H1B to finish if you apply in premium again.

[swethavinnu]

Thank you for the reply.
I have question on I94- When i entered USA on H4 initially, my I-94 was given till 06-25-2016 (this is what i see in I94 portal too), since i changed my status to H1 with an approved H1B, my I-94 is issued as 12-19-2015 along with I797A.
1) If i enter US with H4 then which I-94 will be valid? is it with H4 visa one or H1 approval notice one?

2) As mentioned in my initial post, my H1 extension is still in process (one week over) in PP. When i check Visa appointment slot for Hyderabad, i see next available appointment as Nov-30, this seems to be very long, and also my current employer (consultancy) which applied my extension is very small, should i expect any surprises in visa interview? Btw, i have client letter, W2, paystubs etc..

3) I wanted to re-confirm whether my old H1B approval (have I797A approval till 12-19-2015) is valid if i enter to US with H4 visa now, and my client can file cap-exempt H1B petition with COS? As i understand, my H1B extension which was filed recently will be useless if i enter US on H4?

4) Can you suggest me the best option here? Should i wait for visa interview in india or go to US with H4 in a week and have my client (big company) start my cap exempt H1 Petition in PP?

Please let me know if any additional things that i need to take care.? Thanks in advance.

[shervin143]

1) If i enter US with H4 then which I-94 will be valid? is it with H4 visa one or H1 approval notice one?
>>> You will get a new I-94 when you enter U.S. The validity of that I-94 will be determined by the officer at the POE. It will most likely be matching your spouse's H1B petition expiry date or your H4 visa expiry date. When you leave U.S, you should return all your I-94s. You are not supposed to have any I-94 with you once you are outside U.S.

2) As mentioned in my initial post, my H1 extension is still in process (one week over) in PP. When i check Visa appointment slot for Hyderabad, i see next available appointment as Nov-30, this seems to be very long, and also my current employer (consultancy) which applied my extension is very small, should i expect any surprises in visa interview? Btw, i have client letter, W2, paystubs etc..
>>> I cannot predict things. It depends on how your visa interview goes. If there are no black marks on the employer and if your documents are in order and if you carry a string client letter, then most likely the interview will be smooth.

3) I wanted to re-confirm whether my old H1B approval (have I797A approval till 12-19-2015) is valid if i enter to US with H4 visa now, and my client can file cap-exempt H1B petition with COS? As i understand, my H1B extension which was filed recently will be useless if i enter US on H4?
>>> That petition will be useless once you enter U.S in H4 status. That doesn't mean the employer cannot file a COS from H4 to H1B again using the CAP from your previous H1B approval notice. When the COS gets approved, you will get a new approval notice which will allow you to work (As long as that approval comes with a new I-94).

4) Can you suggest me the best option here? Should i wait for visa interview in india or go to US with H4 in a week and have my client (big company) start my cap exempt H1 Petition in PP?
>>> Ofcourse entering in H4 and filing a COS from H4 to H1B is the easiest since you do not have to go for visa stamping with the petition from your current employer who is relatively small.

[swethavinnu]

Hi Shervin, Thank you.

1) we did not get hard copy of H4 I94 while entering US, we checked I94 online once landed in US, so we did not return any I94 while returning, no one asked about it at any point in return. Should i concern about it? Ofcource we got I94 with my Cos H1 approval notice but as mentioned no one ever asked at any point since we started from philly airport.

2) for the third point below, you meant my client can apply for COS from H4 to H1 in 'Cap-exempt' right? He no need to wait for april quota(cap) right? And, my client needs to be able to send application packet to uscis before my initial H1 approved date? This is the only concern with cap-exempt quota?

3) Should i inform my current employer if i choose this option, he will surely be upset, how to handle this? Can i land in US on H4 and have my client file H1(h4 to h1 cos) in cap-exempt in PP, then inform my current employer? I believe, in noway i need to concern about my current employer petition and it will not incur any adverse effect on my future petition that my client will be filing?

[swethavinnu]

[QUOTE=swethavinnu;437123]Hi Shervin, Thank you.

1) we did not get hard copy of H4 I94 while entering US, we checked I94 online once landed in US, so we did not return any I94 while returning, no one asked about it at any point in return. Should i concern about it? Ofcource we got I94 with my Cos H1 approval notice but as mentioned no one ever asked at any point since we started from philly airport.

2) for the third point below, you meant my client can apply for COS from H4 to H1 in 'Cap-exempt' right? He no need to wait for april quota(cap) right? And, my client needs to be able to send application packet to uscis before my initial H1 approved date? This is the only concern with cap-exempt quota?

3) Should i inform my current employer if i choose this option, he will surely be upset, how to handle this? Can i land in US on H4 and have my client file H1(h4 to h1 cos) in cap-exempt in PP, then inform my current employer? I believe, in noway i need to concern about my current employer petition and it will not incur any adverse effect on my future petition that my client will be filing?

4) forgot to mention, my current employer filed my extension along with amendment, this should not be issue in any ways for my situations?

[shervin143]

1) we did not get hard copy of H4 I94 while entering US, we checked I94 online once landed in US, so we did not return any I94 while returning, no one asked about it at any point in return. Should i concern about it? Ofcource we got I94 with my Cos H1 approval notice but as mentioned no one ever asked at any point since we started from philly airport.
>>> You do not return I-94 when you return back to U.S. You return all your I-94s when you leave the country. Check the below link to return them.

https://www.immihelp.com/returning-uncollected-i94-form-to-cbp/

2) for the third point below, you meant my client can apply for COS from H4 to H1 in 'Cap-exempt' right? He no need to wait for april quota(cap) right?
>>> Yes. Since you already have an approved H1B petition, this is possible.

And, my client needs to be able to send application packet to uscis before my initial H1 approved date? This is the only concern with cap-exempt quota?
>>> There is no such requirement. They can send the H1B petition anytime. There is no requirement to be send it before your H1B effective date.

3) Should i inform my current employer if i choose this option, he will surely be upset, how to handle this?
>>> You don't have to tell your current employer.

Can i land in US on H4 and have my client file H1(h4 to h1 cos) in cap-exempt in PP, then inform my current employer?
>>> Yep, you can do that.

I believe, in noway i need to concern about my current employer petition and it will not incur any adverse effect on my future petition that my client will be filing?
>>> That is correct.

4) forgot to mention, my current employer filed my extension along with amendment, this should not be issue in any ways for my situations?
>>> No.

[swethavinnu]

Hi Sherwin, Regarding the first point. I do not have I94 in my passport, i entered USA in 2013-Nov with H4 visa then i got my H1 approval notice with COS which has I94. Are you talking about this I94 to return it while leaving US? But, no one asked me that ever to return it. Are we in same stand?

[shervin143]

Yes. Doesn't the instruction clearly says that you should cut the I-94 from your approval notice and staple it to the passport?

Hi Sherwin, Regarding the first point. I do not have I94 in my passport, i entered USA in 2013-Nov with H4 visa then i got my H1 approval notice with COS which has I94. Are you talking about this I94 to return it while leaving US? But, no one asked me that ever to return it. Are we in same stand?

[swethavinnu]

Thank you Shervin, could you please answer below questions?
1)have a question regarding start date of work if i travel to US on H4 and get a COS to H1 with my client, am i eligible to work as soon as soon as i see the petition status as approved in uscis website? or i have to wait until approval notice is received(hard copy of i797 with i94) to my client?
2) If i need to wait until hard copy recieval then it will take again 2 to 3 weeks from the approval date, am i correct? And even if in petition was failed in PP, will it take 2 to 3 weeks to get the hard copy?

3) I see my current employer h1 b extention status as "case is approved and approval was 'emailed' ". What was that emailed, was it soft copy of my i797? And uscis status will change if hard copy was mailed? when can we expect hard copy of i797? Time of Receiving hard copy will differ if the petition was filed in PP?

4) if my current employer receives hard copy of i797 after 2 weeks then can i take printout of that soft copy approval to visa interview, am thinking this because sending the hard copy to india will again eat a week time for me.

[shervin143]

1)have a question regarding start date of work if i travel to US on H4 and get a COS to H1 with my client, am i eligible to work as soon as soon as i see the petition status as approved in uscis website? or i have to wait until approval notice is received(hard copy of i797 with i94) to my client?
>>> YOu can begin working as long as you know that your COS to H1Bgot approved.

2) If i need to wait until hard copy recieval then it will take again 2 to 3 weeks from the approval date, am i correct? And even if in petition was failed in PP, will it take 2 to 3 weeks to get the hard copy?
>>> It will take 2-3 weeks to get the hard copy of the petition. If filed in premium, your employer/lawyer will get a soft copy of the approval notice via email. That is more than enough to begin working.

3) I see my current employer h1 b extention status as "case is approved and approval was 'emailed' ". What was that emailed, was it soft copy of my i797? And uscis status will change if hard copy was mailed? when can we expect hard copy of i797? Time of Receiving hard copy will differ if the petition was filed in PP?
>>> That means your hard copy has been shipped. Soft copy should have been already sent visa email. Sometimes USCIS doesn't send the soft copy. In such case, the lawyer can request USCIS to send them the soft copy by email.

4) if my current employer receives hard copy of i797 after 2 weeks then can i take printout of that soft copy approval to visa interview, am thinking this because sending the hard copy to india will again eat a week time for me.
>>> You can take the soft copy. But taking the original approval notice is advisable if possible.

[swethavinnu]

Hi,
Some one just told me that i can't travel on H4 visa since i got my H4 to h1 cos was approved previously when i was in US, due to this my h4 visa became void, is this true?

[shervin143]

Nope. Your visa in the passport will remain valid unless cancelled by the consulate or it has passed its expiry date.

Hi,
Some one just told me that i can't travel on H4 visa since i got my H4 to h1 cos was approved previously when i was in US, due to this my h4 visa became void, is this true?

[swethavinnu]

Nope. Your visa in the passport will remain valid unless cancelled by the consulate or it has passed its expiry date.

Hi, Thankyou for the confirmation. One another query - As i am in India, if my pay stub is not generated for that period, will i be considered as out of H1 status during that stay?

Do i need to anticipate any issues in future (while filing green card) if there is a gap in my pay stubs as i was out of the country in that period?

Thanks,
Swetha.

[shervin143]

Hi, Thankyou for the confirmation. One another query - As i am in India, if my pay stub is not generated for that period, will i be considered as out of H1 status during that stay?
>>> You hold no status when you outside U.S. You cannot go out of status when you actually hold no status to begin with.

Do i need to anticipate any issues in future (while filing green card) if there is a gap in my pay stubs as i was out of the country in that period?
>>> No issues. You should have pay slips for the whole duration when you are in H1B status in U.S. No issues if you do not have pay slips for the period you were outside U.S.