How can extend stay in US if company sending back

[raj.ranjit]

Hi. Please advise.

My company sending me on H1B on 15th July 16 to US. My wife is coming back on 1st of Aug 16 from USA by her company.

Now query is -

How can my wife extend her stay in US?

Her company not ready to continue after 1st Aug.

Her H1B is valid upto March 17.

[raghvi]

Hi. Please advise.

My company sending me on H1B on 15th July 16 to US. My wife is coming back on 1st of Aug 16 from USA by her company.

Now query is -

How can my wife extend her stay in US?

Her company not ready to continue after 1st Aug.

Her H1B is valid upto March 17.

You can file for her COS to H4 as soon as you land in US.

This is my opinion not legal advice.

[raj.ranjit]

How to fill COS? Do we need to do from USA or India? Please advise.

You can file for her COS to H4 as soon as you land in US.

This is my opinion not legal advice.

How to fill COS? Do we need to do from USA or India? Please advise.

[raghvi]

How to fill COS? Do we need to do from USA or India? Please advise.

A COS can only be filed if she is in US . One can fill form I539 and send it to USCIS along with the required documents and fees.

This is my opinion not legal advice.

[raj.ranjit]

After changing status from H1 to H4 can my wife able to work on H1 again

A COS can only be filed if she is in US . One can fill form I539 and send it to USCIS along with the required documents and fees.

This is my opinion not legal advice.

After changing status from H1 to H4 can my wife able to work on H1 again after some days?

[raghvi]

After changing status from H1 to H4 can my wife able to work on H1 again after some days?

It takes anywhere from 3-9 months for H4 to be approved if filed as COS.

If being able to move back to H1 in quick time is a requirement then I would suggest she leaves US on or before 01-Aug-2016 (before her last day on H1), go for H4 stamping (if not already having a valid H4 in passport) while outside US , re enter US using her H4 visa. This way as and when her future employer decides to move her to H1 they can file a H4 to H1 COS in premium and get the result within 15 days.

This is my opinion not legal advice.

[raj.ranjit]

which will be better option?

It takes anywhere from 3-9 months for H4 to be approved if filed as COS.

If being able to move back to H1 in quick time is a requirement then I would suggest she leaves US on or before 01-Aug-2016 (before her last day on H1), go for H4 stamping (if not already having a valid H4 in passport) while outside US , re enter US using her H4 visa. This way as and when her future employer decides to move her to H1 they can file a H4 to H1 COS in premium and get the result within 15 days.

This is my opinion not legal advice.

She currently in US.

which will be better option?

1. Change COS when she will be in US and extend stay. ( Is it allowed to stay on receipt of COS?)

2. GO back to India and stamp for H4. ( While H4 stamping - is it mandatory that they will revoke H1?)

Please suggest

[raghvi]

She currently in US.

which will be better option?

1. Change COS when she will be in US and extend stay. ( Is it allowed to stay on receipt of COS?)

2. GO back to India and stamp for H4. ( While H4 stamping - is it mandatory that they will revoke H1?)

Please suggest

It all depends what you want.

Option 1. Benefit is that she need not travel outside US, but the downside is that in order for her to move back from H4 to H1 in future,she first needs to wait for her H4 approval which can take 3-9 Months.
Option 2: Flexibility to move back to H1 status within 1 Month of entering US in H4. Downside is additional cost to travel, get H4 stamped, and potentially get H1 cancellation in passport. (which can be re stamped in future)

This is my opinion not legal advice.

[raj.ranjit]

Upto approval she will be on which status in US?

It all depends what you want.

Option 1. Benefit is that she need not travel outside US, but the downside is that in order for her to move back from H4 to H1 in future,she first needs to wait for her H4 approval which can take 3-9 Months.
Option 2: Flexibility to move back to H1 status within 1 Month of entering US in H4. Downside is additional cost to travel, get H4 stamped, and potentially get H1 cancellation in passport. (which can be re stamped in future)

This is my opinion not legal advice.

Thanks raghvi so much for your suggestion.

1.Is there any premium process for COS for H4 so that it can be done asap?

2. Upto COS approval she will be on which status in US? H4 or H1?

[raghvi]

Thanks raghvi so much for your suggestion.

1.Is there any premium process for COS for H4 so that it can be done asap?

2. Upto COS approval she will be on which status in US? H4 or H1?

1. No premium available for COS to H4.

2. Neither. Its called "Period of Stay Authorized by the Attorney General". That is, she is allowed to stay but cannot claim benefit of either H4 or H1 during this period, as her request is still being processed. https://www.uscis.gov/sites/default/...tay4023Pub.pdf

This is my opinion not legal advice.

[raj.ranjit]

leave without pay

1. No premium available for COS to H4.

2. Neither. Its called "Period of Stay Authorized by the Attorney General". That is, she is allowed to stay but cannot claim benefit of either H4 or H1 during this period, as her request is still being processed. https://www.uscis.gov/sites/default/...tay4023Pub.pdf

This is my opinion not legal advice.

Thanks Raghvi.


1. Can she take leave without pay with current employer and stay in US on H1 of current employer.

2. In between search for another job and then resign current employer by staying in US. Is it possible?

3. Can we take back COS application after 2-3 months of submission?

[raghvi]

Thanks Raghvi.


1. Can she take leave without pay with current employer and stay in US on H1 of current employer.

2. In between search for another job and then resign current employer by staying in US. Is it possible?

3. Can we take back COS application after 2-3 months of submission?

1. I dont think there is a provision of "leave without pay" while on H1, unless there are strong medical reasons for the same which will need to be documented in detail.
2. If you are not getting paid, you go out of status, and next employer's petition may be approved only as consular process, which anyhow would require your spouse to leave US if she wants to move to H1.
3. If you do that the "period of authorized stay" would be deemed as period of illegal/out of status stay, and subsequent H1 processing will most likely not be approved with new I-94.

I sense that you are trying to avoid a travel out of US as well as maintain valid status while not getting paid and also have ability to quickly move back to H1 and not waiting for H4 COS approval. Unfortunately all these together do not seem possible.

Would advise seeking expert legal help to determine if any options are available to you.

This is my opinion not legal advice.

[raj.ranjit]

H1 will valid?

1. I dont think there is a provision of "leave without pay" while on H1, unless there are strong medical reasons for the same which will need to be documented in detail.
2. If you are not getting paid, you go out of status, and next employer's petition may be approved only as consular process, which anyhow would require your spouse to leave US if she wants to move to H1.
3. If you do that the "period of authorized stay" would be deemed as period of illegal/out of status stay, and subsequent H1 processing will most likely not be approved with new I-94.

I sense that you are trying to avoid a travel out of US as well as maintain valid status while not getting paid and also have ability to quickly move back to H1 and not waiting for H4 COS approval. Unfortunately all these together do not seem possible.

Would advise seeking expert legal help to determine if any options are available to you.

This is my opinion not legal advice.

Thanks Raghavi.
Last but not the lease query.

After coming back to India Can she take loss of pay in India from her employer and come on H4 to USA.

In this case is her H1 will valid?

[raghvi]

Thanks Raghavi.
Last but not the lease query.

After coming back to India Can she take loss of pay in India from her employer and come on H4 to USA.

In this case is her H1 will valid?

Visa/Status/Petition/I-94 are all different things. One can have valid H1 visa but not be on valid H1 status, similarly one can have valid H1 status but not have H1 visa in passport.

When she is out of US, she is not on any visa status as such. So she can be without pay. Yes, she can come back on H4, what cannot be predicted is that as and when she goes for H4 stamping whether her existing H1 would be cancelled in the passport or not. Even if it is marked CWOP, she can still move to H1 status once in US when her future employer files H4 to H1 COS and it is approved.

This is my opinion not legal advice.