H4-H1 Confusion

[H1H4]

I am on H4 currently (that expires on Aug 2008 ). My husband's company would be applying for my extension soon in couple of weeks.
Meanwhile , my H1 went through lottery this year. So, when I get my H1 approved, should I go back to home country for stamping and then start working here in US or can I work here without getting stamped for H1.Because during my H1 processing, I am not sure , if I"ll be on H4 or extension state.

Any quick reply, would be highly appreciated.

[txh1b]

Depends on how the H1b was applied. If it was applied as a COS and approved, you can work from Oct 1st without having to get a visa.

Also, look up last action rule if you have two pending status applications, the one that is effective is that is approved last or one that has the last status change effective date.

Say your H4 COS gets approved on August 1st and you get picked in H1b lottery and it is approved by July 1st effective Oct 1st. Your status will be H4 until Oct 1st and then your status automatically changes to H1b. You need to be careful in such parallel COS petitions and ensure that the last effective COS is the status that you want to maintain.

If H4 gets approved after Oct 1st, you will no longer be on H1.

[H1H4]

?

Thanks for the prompt reply. But I couldn't get the last line. Incase my H4 gets approved after oct1st. But I want to maintain my H1 status only, what is the process?
Can I apply for change of status from H4 to H1 again, since I would have a H1 approval in oct
or should I go to India for stamping H1 and get back to US?

[DMX17]

The last action rule is only a problem to consider IF your H1 was applied with a change of status. If COS was not requested, you will remain on H4 status.

Make sure with your employer if they applied the H1 with a COS.

The last line means if your H4 extension is approved after your status changes to H1 (oct 1st, if COS approved), your status will be H4 and not H1. At this point you should stop working on H1 and maintain H4 status.

Google "Last Action Rule" and go through the 1st search result. It has your situation as one of the questions, I think.

[H1H4]

I understood the last action rule. Thanks for the reply.
But my question was , say my H4 gets approved after oct1st and H1 gets approved before october and effective from oct 1st . Since H4 is the latest one, my status would be H4 , as per last action rule.How do I change my H4 to H1 and start working?
Can I apply for a change of status,again, after october in this case to get my H1? or If I go out of country and stamp, would that be effective?

After this gruelling, process of lottery etc,I dont want to miss this chance of working just because of my H4 extension...since it has been a real long wait for me...
kindly respond..

[txh1b]

If your status changes to H1 and H4 is still pending, you can

• Withdraw the H4 petition

If H4 already got approved after H1,

• Apply for a COS again

• Apply for H1b stamp outside US and enter with a H1 stamp.

[billu]

h1 applied with COS?

hi txh1b,
i had a small doubt. is there any other way(apart from asking the attorney)that you can know that your h1 was applied with COS. Is there anything specific to look for in h1 receipt notice or approval notice that would let us know that the H1 was applied with COS.
Could you please clarify.thanks.

[txh1b]

You can know if it was a COS by checking the form I129.

From the approval notice if it comes attached with an I-94 at the bottom.

[coooldude]

H4 extension approved after and H1B approved

for Tx1 if he catches this one...seems to be knowledgeable

My wife got her extension apprvd until 2011(H4 previous was valid until 2010 at time of filing) with my h1b change of employer(was valid until 2010). she has h1b approved for oct 1st, 2008.
H4 notice was approved two days later than H1b.
I am assuming all is good to go for her as the H1b should have been with COS since this is her 1st employment in the US. Means she can work from Oct 1st. She does not plan to go out of US until then.

Am I missing something?

[DMX17]

for Tx1 if he catches this one...seems to be knowledgeable

My wife got her extension apprvd until 2011(H4 previous was valid until 2010 at time of filing) with my h1b change of employer(was valid until 2010). she has h1b approved for oct 1st, 2008.
H4 notice was approved two days later than H1b.
I am assuming all is good to go for her as the H1b should have been with COS since this is her 1st employment in the US. Means she can work from Oct 1st. She does not plan to go out of US until then.

Am I missing something?

If the H1 I-797 Approval Notice has an attached I-94 at the bottom, your wife's status WILL change on Oct 1st to H1. She is good to go. On H1, make sure she gets paid all the time to avoid any out of status issues if this is a consulting company.

If you were concerned about the Last Action Rule, she is fine as long as she starts working on H1 on Oct 1st. H1 approval is the last action on her case since the last action date on the H1 case is Oct 1st, the effective date.

BTW, Tx1 is Tx1, whoever that is. Knowledgeable is Knowledgeable.

[coooldude]

DMX17...
Thanks, I appreciate your knowledge as well......a lot of people consider this as a unclarified area with the USCIS, they need to post something on their website like they did for the F1 guys. The last action rule is I am sure the most important thing at the moment as H1b kick in once a year. Almost 99% of people will fall into renewing H4's(if expired) and taking a chance at the lottery. People can miss either train...

[txh1b]

Last action rule needs no special clarification.

What USCIS clarified for F1 students via the Hernandez memo is an interpretation of the last action rule when one travels and enters before the COS kicks in. The same clarification applies to H4 as well.

[coooldude]

H4-H1 confusion

Hi, tx1 or dmx...
My wife received her extension on the approval notice from 06/2010 to 02/2011 just as my H1b. I hope this is ok, since at the time of filing H1B the H4 was valid until 06/2010...I hope the last action rule still stands and she can work from Oct 1st.
We called USCIS and they said that all is good, she can start working from Oct 1st, but we are still thinking as why USCIS would not give her an extension from 04/2008 to 02/2011. I am assuming my H1b approval would be 04/2008-02/2011.
Please advise, if this is an issue. Thanks.

[txh1b]

As H1b COS is the last action that will be effective Oct 1st, she is good to change her status and start work from Oct 1st if she got an I-94 attached to the H1b approval notice/I797.

[coooldude]

H4-H1 confusion

Thx tx1,
The law firm is fairly conservative and said they will do the amendment with the new H4 I-94...I am not sure what the need is but I guess they want to be DAMN sure that the last action rule is not misinterpretated for my wife.
They are a big law firm that work for the BIG 5 consulting...I am assuming they are going to do an amendment to already approved petition, they want a new approval date after my wife's H4 date...Oh well! peace of mind is what they want! They mentioned it will not harm anything and she can start work on Oct 1st, 2008.