H4 Applicant - Travelling to India, while H1 is still in process

[Manish Rai]

Hi.

My spouse is currently on H4 visa and have valid visa dates till 2018. She also been filed for H1 B visa and currently under the stage of "In Process". Her current status is RFE due to some employer documentation needed.

As already Oct is passed and she willing to travel to India for a vacation, can she travel to India on H4 and come back, while her H1 is in process and not approved yet.

Please suggest the best options on travel (in case of emergency travel) with this situation.

Thanks

[raghvi]

Hi.

My spouse is currently on H4 visa and have valid visa dates till 2018. She also been filed for H1 B visa and currently under the stage of "In Process". Her current status is RFE due to some employer documentation needed.

As already Oct is passed and she willing to travel to India for a vacation, can she travel to India on H4 and come back, while her H1 is in process and not approved yet.

Please suggest the best options on travel (in case of emergency travel) with this situation.

Thanks

Was H1 filed as COS or as Consular process? Is her future employer aware of her travel plans?

[Manish Rai]

Hi.

My spouse is currently on H4 visa and have valid visa dates till 2018. She also been filed for H1 B visa and currently under the stage of "In Process". Her current status is RFE due to some employer documentation needed.

As already Oct is passed and she willing to travel to India for a vacation, can she travel to India on H4 and come back, while her H1 is in process and not approved yet.

Please suggest the best options on travel (in case of emergency travel) with this situation.

Thanks

It was filed as COS, but currently H4 visa is till valid upto 2018

[Manish Rai]

Was H1 filed as COS or as Consular process? Is her future employer aware of her travel plans?

It was an COS process and has been asked from employer. Can an applicant travel in this situation and what would be the possible risk while coming back to US in this case.

[raghvi]

It was an COS process and has been asked from employer. Can an applicant travel in this situation and what would be the possible risk while coming back to US in this case.

If one travel while the COS is pending, the COS is deemed abandoned. The petition may still get approved, based on its merits, but it will nto come with an I-94. So, in order for your spouse to work on H1, either she has to get H1 stamped in passport and enter US on the H1 visa and work, OR, she can use her H4 to enter US, and then her employer files another COS from H4 to H1, and upon approval of this COS she can work.

This is my opinion not legal advice.

[Manish Rai]

If one travel while the COS is pending, the COS is deemed abandoned. The petition may still get approved, based on its merits, but it will nto come with an I-94. So, in order for your spouse to work on H1, either she has to get H1 stamped in passport and enter US on the H1 visa and work, OR, she can use her H4 to enter US, and then her employer files another COS from H4 to H1, and upon approval of this COS she can work.

This is my opinion not legal advice.

When filing the COS again, after entering the US, do she need to pay the entire H1-B petition filing cost again OR just the Change of Status fee. I believe, if her petition gets approved, then employer only needs to file her COS again and not the entire petition again. Please advice, what would be the cost associated with filing COS and where I can check the fee for COS.

[raghvi]

When filing the COS again, after entering the US, do she need to pay the entire H1-B petition filing cost again OR just the Change of Status fee. I believe, if her petition gets approved, then employer only needs to file her COS again and not the entire petition again. Please advice, what would be the cost associated with filing COS and where I can check the fee for COS.

It's illegal to pay for one's own petition, the employer should bear the cost. The filing fee is 460 USD. https://www.uscis.gov/i-129. Premium is additional 1225 USD. Note this does not include the legal costs. But as I said, it has to be borne by the employer. You can opt to pay for premium processing if you so desire.

This is my opinion not legal advice.