COS filing from H1B to H4

[raj.henry]

Hello Friends,

My wife got her H1B approved in Feb 2016 from an employer but unfortunately the employer is not able to put her in a project for the past 2 months. There were few attempts but nothing has come up till now and hence we have decided to apply for COS to move her status back to H4 to avoid any legal issues.

Questions
1. Since my wife never had a job since the day she got her H1 approved, she never could possibly have any pay slips. Will that be an issue in COS filing or COS getting rejected?
2. If we go ahead an apply for COS and for some reason it gets rejected, does that mean her H1B is also gone or will that continue to be valid until it gets cancelled by the employer?
3. If for some reason the COS gets rejected, will the next step be to start the documentation work for a new H4 application?
4. Should my wife leave US immediately on seeing the COS status as denied or can she be in the US until her H4 paper work is complete and a consulate appointment date is fixed in India for Visa stamping?

Please treat this as urgent and kindly provide your expert opinions.

Thanks,
Raj

[raghvi]

Hello Friends,

My wife got her H1B approved in Feb 2016 from an employer but unfortunately the employer is not able to put her in a project for the past 2 months. There were few attempts but nothing has come up till now and hence we have decided to apply for COS to move her status back to H4 to avoid any legal issues.

Questions
1. Since my wife never had a job since the day she got her H1 approved, she never could possibly have any pay slips. Will that be an issue in COS filing or COS getting rejected?
2. If we go ahead an apply for COS and for some reason it gets rejected, does that mean her H1B is also gone or will that continue to be valid until it gets cancelled by the employer?
3. If for some reason the COS gets rejected, will the next step be to start the documentation work for a new H4 application?
4. Should my wife leave US immediately on seeing the COS status as denied or can she be in the US until her H4 paper work is complete and a consulate appointment date is fixed in India for Visa stamping?

Please treat this as urgent and kindly provide your expert opinions.

Thanks,
Raj

The basis of H1 petition by the employer itself means that the employer does have enough work for the employee. Even if the employer is not able to provide work, they still are legally bound to pay as per the LCA.
1. Assuming H1 was approved as COS, without pay stubs she will be considered out of status. When one is Out of Status a change to another status is typically not approved with a new I-94, meaning she would have to leave US in order to get back in status.
2. It means she has to leave US. As for H1 she may still be considered cap exempt if USCIS does not decide to revoke it considering the fact that the employer never had enough work for the employee.
3. Yes, leave US, and go for fresh H4 stamping, if existing one is expired.
4. Yes she should leave immediately to minimize the out of status period.

You can also force the employer to pay as per the petition and complain to DOL if they don't oblige. If you do this you may be able to avoid the trip outside US. But if you paid for your own H1 then there is hardly any option to complain against the employer.

This is my opinion not legal advice.

[raj.henry]

Thanks for the response. I really appreciate it. Have few more follow up questions.

1. I read in another website that if you file for COS from H1 to H4 without pay slips, the period for which it is acceptable is 60 days. What i mean is if i have my H1b approved as of March 1, 2016 and i dont have any projects so no paystubs, i can apply for COS and get that approved without any issues if i do it before May 2016 (60 days). After which, there will questions about paystubs, etc. Is that true?
2. Suppose COS gets rejected and I am starting a fresh H4 application for my wife, say for eg. i start the paper work for H4 on May 1, 2016 and i get the Chennai US Consulate appointment date as June 20, 2016, should my wife leave US on May 1st itself or can she go to India just few days before the Visa interview appointment date? We have a kid studying here and I cannot afford to have my wife and kid out for months because it might impact the education and thats why i want to know the answer to this.
3. From the date of appointment in the US consulate in Chennai, how much time approx will it take for the H4 to be stamped on the passport and my wife to receive it? I heard 3-5 business days. Is that true or will it take months?

[raghvi]

Thanks for the response. I really appreciate it. Have few more follow up questions.

1. I read in another website that if you file for COS from H1 to H4 without pay slips, the period for which it is acceptable is 60 days. What i mean is if i have my H1b approved as of March 1, 2016 and i dont have any projects so no paystubs, i can apply for COS and get that approved without any issues if i do it before May 2016 (60 days). After which, there will questions about paystubs, etc. Is that true?
2. Suppose COS gets rejected and I am starting a fresh H4 application for my wife, say for eg. i start the paper work for H4 on May 1, 2016 and i get the Chennai US Consulate appointment date as June 20, 2016, should my wife leave US on May 1st itself or can she go to India just few days before the Visa interview appointment date? We have a kid studying here and I cannot afford to have my wife and kid out for months because it might impact the education and thats why i want to know the answer to this.
3. From the date of appointment in the US consulate in Chennai, how much time approx will it take for the H4 to be stamped on the passport and my wife to receive it? I heard 3-5 business days. Is that true or will it take months?

1. There is no such grace period. But you can certainly try your luck. The issue I see is that H1 to H4 can take months and your spouse may end up accumulating lot of out of status period due to this wait.
2. First of all, I doubt you would get a response to the COS so early, its easily taking 6-8 Months to get a response from USCIS on H4. Hypothetically, even if you do, if she decides to stay till June 20th the out of status period only becomes longer. How this will impact will depend upon the officer, many times the out of status period (if not too long) has been ignored, on rare occasions, it has come to bite back during GC processing. It all depends who looks at the case files in the future.
3. 1 week to 10 Days is a fair wait time.

This is my opinion not legal advice.

[raj.henry]

Thank you so much. Your response has been really helpful. I did talk to the attorney and i was directed with the same advice.

I am moving forward with filing a new H4 for my wife and she will go to India to get it stamped and come back to US. I was told thats the quickest and cleanest way of handling such a scenario.

Thanks,
Raj

[mrt3019]

1. There is no such grace period. But you can certainly try your luck. The issue I see is that H1 to H4 can take months and your spouse may end up accumulating lot of out of status period due to this wait.
2. First of all, I doubt you would get a response to the COS so early, its easily taking 6-8 Months to get a response from USCIS on H4. Hypothetically, even if you do, if she decides to stay till June 20th the out of status period only becomes longer. How this will impact will depend upon the officer, many times the out of status period (if not too long) has been ignored, on rare occasions, it has come to bite back during GC processing. It all depends who looks at the case files in the future.
3. 1 week to 10 Days is a fair wait time.

This is my opinion not legal advice.

Hi Raghvi,

Below my Scenario,
Currently my wife is in H4. Her H4 visa is valid till Sep 30,2018
We applied for H1 last year. It got picked in lottery but rejected due to no project. Her employer applied MTR, H1 got approved on April 4th,2016 but without I94.
Below are my questions
1. Is she currently out of status or she continue to be in H4 in US without working
2. or She need to goto India and get H1 visa stamped?