H4 to H1 --> I-797B. Planning to revert back to H4

[paddler009]

Hello All,
Me(H1B) and my wife(H4) are in United states with valid VISA till Feb-2017. Last year my wife applied for H1B and she received a "I797-B Notice of action" valid from Oct 2015 to Sept 2017 . The employer mentioned us that in-order for her work on H1B she has to leave the country, go to india and get VISA stamped. But employer does not have a supporting client letter and has been delaying the process since then. Following are my questions

1) What is the current status of my wife H1B or H4 ?
2) If her status is still H4, can I file my H1B extension along with her H4 transfer.
3) If she is in H1B, what should I do to get her back on H4 status. Whether her employer needs to first initiate the H1B revocation and only then I can file my H1B extension automatically extending her H4

Please note my I-140 is approved and as a next step planning to apply EAD for my wife on basis of my I-140.

Need you advice and thanks for supporting us through the this forum.

[raghvi]

Hello All,
Me(H1B) and my wife(H4) are in United states with valid VISA till Feb-2017. Last year my wife applied for H1B and she received a "I797-B Notice of action" valid from Oct 2015 to Sept 2017 . The employer mentioned us that in-order for her work on H1B she has to leave the country, go to india and get VISA stamped. But employer does not have a supporting client letter and has been delaying the process since then. Following are my questions

1) What is the current status of my wife H1B or H4 ?
2) If her status is still H4, can I file my H1B extension along with her H4 transfer.
3) If she is in H1B, what should I do to get her back on H4 status. Whether her employer needs to first initiate the H1B revocation and only then I can file my H1B extension automatically extending her H4

Please note my I-140 is approved and as a next step planning to apply EAD for my wife on basis of my I-140.

Need you advice and thanks for supporting us through the this forum.

1. As your spouse got I797B, without a new I-94 at the bottom of it, it means, the COS to H1 was not approved, she is still on H4.
2. Yes. Technically there is nothing called as "H4 transfer" it will be a H4 extension.
3. Does not appear she is on H1.

This is my opinion not legal advice.

[paddler009]

1. As your spouse got I797B, without a new I-94 at the bottom of it, it means, the COS to H1 was not approved, she is still on H4.
2. Yes. Technically there is nothing called as "H4 transfer" it will be a H4 extension.
3. Does not appear she is on H1.

This is my opinion not legal advice.

Thank you Raghvi for quick response.

In this case I will go ahead and apply for her H4 extension along with my H1B extension. My only question remains what happens to her current H1B, do we need to inform her employer to revoke her H1B before I apply for H4 extension? If we do not revoke her H1B, will it be an issue when we visit India for stamping or Port of entry, kindly suggest.

[raghvi]

Thank you Raghvi for quick response.

In this case I will go ahead and apply for her H4 extension along with my H1B extension. My only question remains what happens to her current H1B, do we need to inform her employer to revoke her H1B before I apply for H4 extension? If we do not revoke her H1B, will it be an issue when we visit India for stamping or Port of entry, kindly suggest.

Her H1 is not going to be active unless

The employer files a COS from H4 to H1 , and gets a new I797 with a new I-94 at the bottom of it.
OR
Your wife goes out of US, gets a H1 stamped in her passport and enters US on that visa showing her H1 I797.

I dont see a need for you to recommend to the employer to revoke the H1. Its their call if they want to revoke it or not.

This is my opinion not legal advice.

[mindrd]

I-140

I don't see any reason why your wife will apply for H1B when you have an approved I-140. When you file the I-765 with your H1B packet and her H4 Extension forms, she will be able to work for whatever employer she wants without restriction on her work permit. There is no need for her to file the H1B petition at all, especially when they don't even have an end-client letter. That is risking a denial of her H1B petition.

Also, your wife does not need to leave the US to get an approved change of Status. If she leaves while the change of status is pending, she will have to process as her change of status request will be denied due to abandonment.