H4 to H1 Change of Status - Help

[mkyaj]

Hi,

I applied H1 for my wife in Apr-2008. She got H4 Visa on Apr 26th and entered US with H4.

H1 petition is approved and is valid from Oct-1-2008. We got I-797B along with I129.
As it is not Change of Status (COS) type, there is no I-94 with H1.It is CONSULAR type.
So the current I-94 is for H4. The Consulate was given in H1 petition is Chennai, INDIA.

Please help me with below questions.

1) Can she start working from Oct-2008, even though the current status is H4?

2) To work from Oct-2008, can we apply for Change of Status from H4 to H1 without going out of US and rentering?
What is the procedure to apply Change of Status from H4 to H1? How long will it take?

2) I heard the Change of Status may take nearly 6 months. So i am thinking it is better to go to CANADA/MEXICO and get H1 stamping instead of waiting for that long. But is it fine if i go to any consulate other than mentioned one in the petition?
Or do i have to change the Consulate before going there?

3) If i go to CANADA & if they don't approve the H1 VISA, can she reenter with previous H4 VISA, as it is valid till 2009 Oct? Some one said, first they will cancel the current one and they look into whether they can issue H1 VISA or not?
If that case, she can't enter US again. Is that true?

Please suggest me.


Thanks,
Krishna.

[Subramanya]

H4 to H1 Dilemma

I applied H1 for my wife in Apr-2008. She got H4 Visa on Apr 26th and entered US with H4.

H1 petition is approved and is valid from Oct-1-2008. We got I-797B along with I129.
As it is not Change of Status (COS) type, there is no I-94 with H1.It is CONSULAR type.
So the current I-94 is for H4. The Consulate was given in H1 petition is Chennai, INDIA.

Please help me with below questions.

1) Can she start working from Oct-2008, even though the current status is H4?

---- NO. Not unless she has a I-94 for H1 and a Social Security Number

2) To work from Oct-2008, can we apply for Change of Status from H4 to H1 without going out of US and rentering?

---- Yes, you can

What is the procedure to apply Change of Status from H4 to H1? How long will it take?

Use form I-539 (check online at USCIS website) and other forum posts

2) I heard the Change of Status may take nearly 6 months. So i am thinking it is better to go to CANADA/MEXICO and get H1 stamping instead of waiting for that long. But is it fine if i go to any consulate other than mentioned one in the petition?
Or do i have to change the Consulate before going there?

---- This is taking a chance. There are people who have been successful this way, but at the same time be prepared to travel to India if the Visa is refused in Canada/Mexico

3) If i go to CANADA & if they don't approve the H1 VISA, can she reenter with previous H4 VISA, as it is valid till 2009 Oct?

---- No, once you apply for a Visa at a US Consulate and the Visa is refused you may not be ppermitted to enter on the existing valid Visa. Thouth people have been succesful this way. All you can do is take a chance

Some one said, first they will cancel the current one and they look into whether they can issue H1 VISA or not?
If that case, she can't enter US again. Is that true?

---- Read as above
.
Subramanya

[txh1b]

3) If i go to CANADA & if they don't approve the H1 VISA, can she reenter with previous H4 VISA, as it is valid till 2009 Oct? Some one said, first they will cancel the current one and they look into whether they can issue H1 VISA or not?

She can enter on H4 visa is H1 is denied and H4 visa is not canceled. Generally, they cancel the existing visa only if they are going to issue the new visa.

[mkyaj]

Thank you very much Subramanya and txh1b. That is very helpful information you have given.

For one of my friends who appeared at MEXICO, before even looking into H1 documents, they asked him whether they can cancel his current VISA. When he said yes, they cancelled it and then started looking into H1 documents.
So in the worst case, if they do that (hope that doesn't happen) i can go back to INDIA and appear at CHENNAI Consulate ( with all extra documentation that is been requested at CANANDA / MEXICO ) consulate ?

Or do i have to wait for sometime before appearing at CHENNAI consulate?

Thanks,
Krishna.

[txh1b]

You can go to home consulate in case of a rejection directly. You need an appointment though. No waiting period.

It just depends on the VO. My prior visas were canceled during the interview when they were asking questions. It depends. If they are going to deny a visa, your case is weak and you should be prepared for the worst during any third country stamping.

[mkyaj]

Thank you.

As my petition is valid from Oct-01-2008, i can travel to CANADA/MEXICO only after Oct-1 and i can't wait till then wituout applying for COS. And i think it is not good idea to travel outside US after applying for COS.

So i think it is better to apply for Change of Status. My Petition is processed at Vermont Service center ( EAC ).

Processing times for I-539 ( Change of status ) at Vermont Center, they are still Oct -2007.
Processing times for I-539 ( Change of status ) at California Center are Apr-16-2008.
So i think it is better to Apply COS ( I-539) at California Service Center.

I looked at USCIS.gov I-539 form, they said Vemont Service center will process I-539 forms for VA state ( My Employer placed in VA).

Can i apply I-539 form to process at California Service center, even though my Employer is placed in VA?

Thanks,
Murali.

[txh1b]

You can apply anytime for H1b visa now and enter US on a H1b 10 days prior to Oct 1st. COS to H1b is always on I129 not I539.

Does the approval I797 have an attached I-94?

[mkyaj]

We got I-797B ( without I-94) because we applied for H1 on Apr1st & she entered US on Jun-6.

I am referring to I-539 because for applying COS i have to use I-539 form Right? Or am i looking at wrong processing times?

[txh1b]

I am referring to I-539 because for applying COS i have to use I-539 form Right? Or am i looking at wrong processing times?

Open the I539 and look. It is not for H1. H1 COS has to be on I129 filed as an amendment to existing petition.

[mkyaj]

Thank you very much txh1b for replying me very patiently. Really appreciate your help.

Sumbramanya in the below reply said that i have to use I-539 form for COS from H4 to H1.

Also i looked at the Instructions to fill I-539 and page3 is mentioned below. Is it only for COS to Dependent of H,Temp worker?

7. Dependents of an H, Temporary Worker
If you are filing for an extension/change of status as the dependent of an employee who is an H temporary worker, this application must be submitted with:
B. A copy of the employee's Form I-94 or approval notice showing that he or she has already been granted status to the period requested on your application; and
C. Evidence of relationship (example: birth or marriage certificate).
NOTE: An employer should file Form I-129 to request an extension/change to H status for an employee or prospective employee. Dependents of such employees should file for an extension/change of status on this form, not on Form I-129

Thanks,
Krishna.

[txh1b]

It is clear from the instructions that I539 is for H4 and the likes and I129 is for a COS to H1b. I 539 can be filed by the applicant while I129 has to be filed by the employer.

I539 cannot be used for a COS to H1b AFAIK. Based on logic, H1b is a employer petition and no employer would want someone to come and claim that they have changed their status to H1b by themselves using COS and they owe them salary.

I129 amendment is the only way to COS to H1b.

[supender]

I am in similar situation,My wife's employer is filing ammended I-129 for change of status.And her lawyer told us we expect the new I-94(H-1B) before 1 oct 2008.Does anybody know where can I track ammended H-1B petition.

[nidhij_12]

COS from H4 to H1

Dear Krishna/Supender

I am in similar situation as yours.Can you pls tell how much time did it take once u filed I129 for Change of Status from H4 to H1?
Is there any possibility that it will be denied?

Regards

Nidhi

[sav]

Hi guys,
I am in similar situation.
I am on H4 and I received H1B starting from October 1st 2008
The I-797 that i received doesn't have I -94. So I cannot apply for SSN and not for the jobs either.

Looking at the economy, I feel it isn't that bad. As otherwise I would have had to find an assignment in 2 months, or i would have got my h1B cancelled.

That being said, its extra work from my side to apply for change of status.
I looked at the links explaining about I 535 at "http://www.h1bsponsors.com/html/h1bExtension.html"
It says,

H1B Extension
Difference between extension and revalidation: You have to apply for H1B extension at the INS office, if your approved H1B is about to expire. If you have approved H1B and VISA on your passport is about to expire then you have to apply for revalidation at St.louis. (This is just revalidating your VISA, so that if you travel outside US, you can come to US using your valid VISA)

You must submit the application for an extension of stay BEFORE your current authorized stay expires. You must also keep your passport valid for your entire stay in the United States. Your employer should carefully read and file an INS Form I-129 (Petition for Nonimmigrant Worker) with supporting documentation to extend your H1B status.

While applying your H1B extension, please don't forget to apply H4 extension(s) for your dependents. Your dependents will NOT get automatic extension based on your H1B extension, so you have to apply separately for them.

H4 Extension / Change of status to H4

If you are filing for H4 extension or change your status to H4 as the dependent of an H1B employee, you should file FORM I-539. You must submit a copy of H1B holder's FORM I-94, H1B approval notice and evidence of your relationship (Example: Marriage certificate if spouse, Birth certificate if children)

According to it, this form is for H1B extention or H4 extension.
So to putting it in simple words, when my husband files for h1b extension, he has to fill this form I 535 and so do I to extend my H4 visa.


But in the given situation, when I have H1B, I cannot apply it for Change Of Status from H1b to H4, unless I go to Mumbai consulate and reenter in US.
I am very confused and scared. I have just been to India and will have to bare the cost of going back for stamping.

Can any of you guys put more light on it?

SAV.

[txh1b]

Can any of you guys put more light on it?

SAV.

Post what your question is rather than post 100 lines of unwanted material. What is the question?