H4 Stamping

[madeyes]

Hello,

My husband and me are travelling to India next week. Our visa stamps are valid till Feb 25th 2016 and I 797 is till 30th Sept 2016.
We have to get the visa extended till the I 797 validity for which we have to appear for an interview. Last time when we went to get our visas stamped, my husband got a 221g and it delayed the process by 2 weeks. I have just got my EAD on h4 and joined a new job so I can only take 2 weeks off from work. So we decided that my husband will go for his stamping alone. If his is approved , I have the drop box option for getting my visa extended. If his goes into administrative processing again, I will be able to travel back on 30th Jan since visa is valid till Feb 25th 2016.

My questions are:

How much time does it take to get the H4 visa through IWP?
If I am not able to get the visa stamped because my husband gets a 221g , can I go to Canada and get it stamped sometime later after his visa is approved?
Will there be an issue for me in coming back without getting visa extended. I might have to come back alone if my husband's visa is still in administrative processing?

Please advise.

Thanks

[shervin143]

My husband and me are travelling to India next week. Our visa stamps are valid till Feb 25th 2016 and I 797 is till 30th Sept 2016.
We have to get the visa extended till the I 797 validity for which we have to appear for an interview. Last time when we went to get our visas stamped, my husband got a 221g and it delayed the process by 2 weeks. I have just got my EAD on h4 and joined a new job so I can only take 2 weeks off from work. So we decided that my husband will go for his stamping alone. If his is approved , I have the drop box option for getting my visa extended. If his goes into administrative processing again, I will be able to travel back on 30th Jan since visa is valid till Feb 25th 2016.
>>> This understanding is wrong. There is no H4 without H1B. H4 is dependent on H1B being in status, Meaning, when the H1B is put on hold, you cannot travel back on H4. When your husband is not in H1B status, you cannot continue to be in H4 status. If you travel back and if by chance the officer at the POE figures this out, they can even deport you back.

My questions are:

How much time does it take to get the H4 visa through IWP?
>>> 2-3 weeks.

If I am not able to get the visa stamped because my husband gets a 221g , can I go to Canada and get it stamped sometime later after his visa is approved?
>>> Possible. But read the first answer.

Will there be an issue for me in coming back without getting visa extended. I might have to come back alone if my husband's visa is still in administrative processing?
>>> Read the first answer.

[madeyes]

If I decide not to go to India, and my husband goes. His visa goes into admin processing. What happens then?

[shervin143]

Wait to see if he gets a decision within 1 month. If not, you should leave.

If I decide not to go to India, and my husband goes. His visa goes into admin processing. What happens then?

[madeyes]

Thanks for answering my questions. I have another one. What happens if we both come back without getting visa extended till 30th Sept 2016. Will we be questioned?

[shervin143]

Well, in that case your I-94s can be issued only till the visa expiry date (Feb 25th 2016). If that happens then your spouse's employer will need to file the H1B / H4 extension immediately. The applications for extension should reach USCIS before your most recent I-94 that you will receive upon your return at the POE expires. It takes about 10 days to get the LCA approved and then the time it takes to prepare the extension documents. If you can manage all that before the I-94 expiry date, then you can take that risk.

Thanks for answering my questions. I have another one. What happens if we both come back without getting visa extended till 30th Sept 2016. Will we be questioned?

[madeyes]

I think H1B extension can only be applied 6 months before which in our case will be around April 1st. Is there any other way to get a new I 94? Will we be questioned at POE as to why are we entering just 20 days before?

[shervin143]

Extension can be applied within 6 months of the I-94 expiry date and not the petition expiry date. While you re-enter, as I mentioned, your I-94 can be issued only till the visa expiry date. If that happens, then you should plan properly to have enough time left to file the extension properly.

I think H1B extension can only be applied 6 months before which in our case will be around April 1st. Is there any other way to get a new I 94? Will we be questioned at POE as to why are we entering just 20 days before?

[Vijiya Bharathi]

H4 & H1B Stamping Queries

My H1B Status still in Received status from sep 11 2015.I have to go to India in another 10 days.

1)If i get the approval before i come back and COS is applied ,Can i get H4 stamped in india and come back to US on H4 Visa?
2)What will happened to my H1B visa if COS is applied and come back from India with H4 stamping ?
3)My employer says that the COS will be applied along with the H1B petition.Is that true ?.When will the change of status will actually be applied ?
4)Is there a way not to apply COS when i get the H1B approval ,then come back from India with H4 stamping and apply for COS from H4 to H1B ?

[shervin143]

The following answers are assuming that your H1B was filed as a COS from H4.

1)If i get the approval before i come back and COS is applied ,Can i get H4 stamped in india and come back to US on H4 Visa?
>>> If you leave while the H1B COS is under progress, then COS will most likely be denied and H1B can get approved for consular process. So yes, you can return back on H4 visa. You won't be able to work for the employer if you return back on H4 unless a COS is filed later and it gets approved.

2)What will happened to my H1B visa if COS is applied and come back from India with H4 stamping ?
>>> If the H1B gets approved (with or without COS) while you are outside U.S and if you enter in H4 visa, then you will be in H4 status. H1B petition will be valid, but you cannot work for the employer a COS is filed later and it gets approved. Alternatively, you can leave the country, get the H1B visa stamped and return back to begin working for the employer.

3)My employer says that the COS will be applied along with the H1B petition.Is that true ?.When will the change of status will actually be applied ?
>>> The employer would have filed the H1B as a COS from H4 (I am assuming you were on H4 status before when the H1B was filed). When the petition gets approved, if t comes with a new I-94 attached, then it means your status has changed from H4 to H1B. If the approval comes without a new I-94, then it means, the petition got approved for consular process.

4)Is there a way not to apply COS when i get the H1B approval ,then come back from India with H4 stamping and apply for COS from H4 to H1B?
>>> There is nothing you can do now. It is how the employer filed your petition initially. However, if you leave, the COS will get denied. If you are anyways planning to return back to U.S only after you get a decision on your H1B, then you need not worry about the COS anymore. Even if the petition gets approved as a COS while you are outside U.S and if you enter in H4 visa, it will put you back on H4 status. Later whenever you want to begin working, the employer should file a COS from H4 to H1B and you cannot work until the COS gets approved.

[Vijiya Bharathi]

The following answers are assuming that your H1B was filed as a COS from H4.

1)If i get the approval before i come back and COS is applied ,Can i get H4 stamped in india and come back to US on H4 Visa?
>>> If you leave while the H1B COS is under progress, then COS will most likely be denied and H1B can get approved for consular process. So yes, you can return back on H4 visa. You won't be able to work for the employer if you return back on H4 unless a COS is filed later and it gets approved.

2)What will happened to my H1B visa if COS is applied and come back from India with H4 stamping ?
>>> If the H1B gets approved (with or without COS) while you are outside U.S and if you enter in H4 visa, then you will be in H4 status. H1B petition will be valid, but you cannot work for the employer a COS is filed later and it gets approved. Alternatively, you can leave the country, get the H1B visa stamped and return back to begin working for the employer.

3)My employer says that the COS will be applied along with the H1B petition.Is that true ?.When will the change of status will actually be applied ?
>>> The employer would have filed the H1B as a COS from H4 (I am assuming you were on H4 status before when the H1B was filed). When the petition gets approved, if t comes with a new I-94 attached, then it means your status has changed from H4 to H1B. If the approval comes without a new I-94, then it means, the petition got approved for consular process.

4)Is there a way not to apply COS when i get the H1B approval ,then come back from India with H4 stamping and apply for COS from H4 to H1B?
>>> There is nothing you can do now. It is how the employer filed your petition initially. However, if you leave, the COS will get denied. If you are anyways planning to return back to U.S only after you get a decision on your H1B, then you need not worry about the COS anymore. Even if the petition gets approved as a COS while you are outside U.S and if you enter in H4 visa, it will put you back on H4 status. Later whenever you want to begin working, the employer should file a COS from H4 to H1B and you cannot work until the COS gets approved.

"Thank you so much Shervin.
Alternatively, you can leave the country, get the H1B visa stamped and return back to begin working for the employer.--- Does this mean that if i get the documents from my employer i can get h1b visa stamped in india and come back on h1b ?
--wont i need 3 months payslip for my h1b stamping?
--Can you pls explain the pros and cons in this situation ? "

[shervin143]

Alternatively, you can leave the country, get the H1B visa stamped and return back to begin working for the employer.--- Does this mean that if i get the documents from my employer i can get h1b visa stamped in india and come back on h1b ?
>>> Yes.

--wont i need 3 months payslip for my h1b stamping?
>>> Not if you were never on H1B status. You are not suppose to work when you are not in a work status (H1B or L1) and such employment is illegal. When you cannot work, how can you get pay slips. This is not an issue.

--Can you pls explain the pros and cons in this situation ?
>>> Well, if the visa is approved, you can return back in h1B visa and start working. If your H1B visa gets denied, then you need to once agin file H4 visa and upon approval return as a dependent. But yu cannot work when you in H4 status.