H4 and H1....Can you please reply to this query ?

[squid]

Hi,

When I referred to the link,

https://www.immihelp.com/h1-visa-faq/

I read the following answer to a question "H1 never used before."

"A transfer is nothing but a new h1b application that is not subject to cap. If you have proof (like the copy of I797 or a receipt number), a new employer can transfer the H1b even if you have not entered into USA"

Now, my case is slightly different.

I am in US on H4 Visa having H1B approved with an employer. However, the approval papers and the new I94 are not with me.

I just have a scanned copy of my receipt notice that was sent through email, months back from the same employer. I may not be able to work from Oct 1st with them.

Instead, I am planning to apply for H4 extension before Sep 30th in order to maintain the H4 status in US. My questions are :

1. Since, I am not planning to work now, and hence I will not have pay stubs, is it possible to apply for fresh H1B application through a different employer (after Oct 1st) who is ready to sponsor my H1B ?

2. I understand that I will not be counted under cap again as my H1B is approved once and the place does not matter whether I am in US or out of US. Is this correct ?

3. Can we apply for fresh H1B application( after Oct 1st) using just the scanned receipt notice ?

4. Is it required to have my approved H1B with new I-94 with me from the employer even though I do not work for them from Oct 1st ?

5. I heard that we need to give all I-94s that I have before I leave US. Since, I have one I-94 while I entered US on H4 and the other one is with my employer, do I need the second I-94 to be submitted if I leave US ?

Thanks a lot!!!

[txh1b]

1. Yes, provided you do that after your H4 extension is approved.
2. Yes.
3. Yes, provided the petition was actually approved. It will be a fresh H1 that is not subject to cap (Commonly known as transfer)
4. Not needed. However, the proof of current status is needed. Hence my answer on #1.
5. They all have the same number. As long as you turn in all valid I-94s, you will be fine. If you apply for H4 extension prior to Oct 1st, you are good to go as you will get your H4 I-94 with valid dates and H1b I-94 does not come into picture as you never held that status.

[abhayg4]

Hi txhb1,

I know I should have opened a new thread , as this thread belongs to some one else.Sorry for that.
But my question/concern is related to Question 5 raised by Squid.

As my original I-797A (H1 Petition Extention /Transfer) is lost by the company which consisted of my extended new I-94 also valid till Feb'2010.
But I do have the photocopy of the same.

Now in my passport , I have Old Original I-94 when I came first time to US which is valid till Oct'10 ,2008.
We have applied for the duplicate copy of the I-797A with USCIS which i think will take time.
Now my question is If I have to go to India - for some reasons after Oct'10,2008.
Can I give the OLD ORIGINAL I-94 and the photcopy of new extended I-94 at airport while going.(Note: Both have the same Number).
OR
I cannot go to india unless I have the new Original I-94 also in my hand to be given at airport?

Thanks for your time and help.
In one of your forum u have written that you are not GOD to save others....but still you are the BEST.

--Abhay

[txh1b]

To be honest, it does not matter. If you turn in one I-94, as they have the date associated with that I-94 number in the system. All they do is to close that arrival record associated with the number and verify the person left before the expiration date against that I-94 number. As long as you leave before the I-94 date in their system, it will not matter as long as you have maintained proper status in that period. Just save the proof that you left in case you are questioned later on after 2 years or so.

BTW, just applying for a duplicate I797 will not get you the duplicate I-94. USCIS will just send you a duplicate I797 only. If you need the I-94, you need to apply for it separately. I can't recollect the form number. I think it is I-102.

[squid]

Thank you.....

Hello txh1b,

Thank you so much for answering my questions and I appreciate your time and help.

[abhayg4]

Hi,
Thanks for the information.
Infact for your last statement that for duplicate of I-94 , I need to apply separately.I asked my attorney the same thing last week that they have applied I-824 for the duplicate of I-797A and we should apply I-102 for the duplicate of I-94.
But below is the thing they have replied:
"You should receive an I-824 Duplicate H-1B approval with I-94. You are fine and do not need to do I-102 application. Thanks"

---Abhay

[abhayg4]

Hi ,
In addtion to that they have said - we need not required to apply I-102 for duplicate of I-94 unless and untill my Original OLD I-94 is also LOST.

---Abhay

[squid]

H4 extension

Hello txh1b,

I heard that if I apply for H4 extension now, it might take more than 4 months to get approved. My questions are :

1. If I apply for H4 extension, I will get my new receipt number. I hope this is sufficient to stay in US beyond Oct 1st. Is this correct ?

2. I would also like to know if I leave US before my H4 extension approval, I will be submitting I-94 which is valid only till Sep 30th. However, I will have receipt number for the H4 extension. Will they consider this receipt number when I leave US ? or will they check for my validity of status beyond Oct1st ?

3. If I travel before my H4 extension is approved, may be, in November, will I be considered as out of status from Oct1st till November?

4. Can I apply for premium processing of H4 extension so that I can overcome all these issues ?

5. My friend got his H1 extension approved recently. His new I-94 number is different from the old one where the first 3 digits are different. Is this an error in his I-94 ?

Thanks in Advance!!!

[txh1b]

"You should receive an I-824 Duplicate H-1B approval with I-94. You are fine and do not need to do I-102 application. Thanks"

I doubt it as I have seen cases on the forum that had just the I797B instead on I797A upon requesting duplicate. Update when your case gets processed.

[txh1b]

1. Yes
2. You are in better position if you dont leave until the H4 gets approved.
3. You are not out of status but in a pseudostatus type thing called period authorized by attorney general. See #2.
4. No
5. He needs to notify USCIS and get it corrected. Happened to me in the past as well.

[squid]

Thanks a lot

Hello txh1b,

Thanks for your quick reply. Your answers have helped me a lot.

[squid]

Txh1b .. Please reply.

1. Yes, provided you do that after your H4 extension is approved.
2. Yes.
3. Yes, provided the petition was actually approved. It will be a fresh H1 that is not subject to cap (Commonly known as transfer)
4. Not needed. However, the proof of current status is needed. Hence my answer on #1.
5. They all have the same number. As long as you turn in all valid I-94s, you will be fine. If you apply for H4 extension prior to Oct 1st, you are good to go as you will get your H4 I-94 with valid dates and H1b I-94 does not come into picture as you never held that status.

I have one more query..This one is with respect to your answer for Question 3.

Question 3 : "Can we apply for fresh H1B application( after Oct 1st) using just the scanned receipt notice ? "
Answer : Yes, provided the petition was actually approved. It will be a fresh H1 that is not subject to cap (Commonly known as transfer)


The question is : If the petition is approved and is revoked by the same employer before another Employer C can apply for transfer, will this be approved as I will not have paystubs as I would not have worked for them at all.

I understand that for transfers you can work immediately after applying for transfer. What is the difference between a transfer and fresh H1B application not under quota ? will the fee vary ? I want to understand whether to treat it as a transfer or fresh H1B application from Employer C perspecitve.


Thanks in advance !!

[txh1b]

Every H1b is a fresh H1b as far as USCIS goes and paperwork goes. As long as you were maintaining a status in some form, a pay stub from the intermediate company is not needed if you were maintaining H1b from the prior company continuosly without gap in pay as one is not obligated to join the employer after a transfer is approved.

A transfer is nothing but a new H1b that is not subject to cap. Read the FAQs!!

[abhayg4]

Hi,

I am just updating this old forum for the result of my case:

I got my duplicate I-797 (which was lost) and the Duplicate I-94 by filing I-824 only from USCIS and there was no need for filing I-102

Thanks ,
Abhay