H1 to H4 Question

[akskap]

Dear Members,

I am currently on h1 B status with company A. I have approved AP and pending EAD from my husbands pending I-485 application with company B.

Due to difficult times in the market I want to change status from h1B to h4. I plan to file change of status from h1 to h4 on March 1st.

We plan to travel to travel to India in July and have the following questions:

1 ) If my change of status to h4 is not approved by July ( as we heard it is taking more than 6 months to approve), can we still travel to India and can I visit the consulate in India with my husband and get h4 stamped? My husband has to get his h1b visa stamped anyway.

2) If my change of status is not approved in India, can I still use AP and come back? I have approved AP and pending EAD application.

3) Can I leave the country without my EAD being approved? Will this abandon my 485 application?

Appreciate your help in this matter.

Thanks

[txh1b]

If you are currently in proper H1b status and working along with getting paid:

1. Yes
2. COS is when you are in US. You don't hold a status once you are outside US. CP is when you get a visa stamp and enter. You can use AP.
3. EAD is optional. It will not abandon anything. AP should be approved prior to travel if you don't want to abandon the 485.

[akskap]

Thanks for your reply. One last clarification.

I have been on H1 status since October 01, 2008 and getting paid since day 1. However, from March 1, 2009 I will not be getting paid as I will be out of project. I am going to file change of status effective March 01, 2009 to H4.

Based on this scenario, am I still okay? Please note that I will not be getting paid from March 01.

[txh1b]

Your COS request to change to H4 has to reach USCIS before your H1b pay ends i.e March 1st.

[akskap]

Sorry to ask one last thing as I want to be sure.

So, if my COS reaches before March 1st and if by June even if I don’t get the COS approved, I can still travel out of the country, go to consulate with my husband (who will get his h1b stamped) and get stamped for H4 by appearing at the consulate (without COS document)?

You indicated earlier this should be okay as long as I have the paychecks and was getting paid. However, will it be okay to have paychecks until March 1st in this scenario as I will be filing for COS by March 1st and will not have paychecks going forward.

Thank you for your help.

[txh1b]

Yes, it is okay as you will be in authorized stay period on a pending H4 COS application that was applied when you leave the country.

However, there is gray area possibility that if the H4 COS petition gets denied as you left the country when it was pending, your stay past March 1st may be considered out of status.

[jsep08]

question about 245(K) related to h1 - H4 Transfer

Hi,
I have a related question,
I was in US on H4 in 2008 and got my H1 approved from Oct 1st 2008. (My stamping on passport is still H4.) There was no opportunity and the employer was not paying me. I know based on going through the forum topics that I am out of status. I don't have W2 for the 3 months in 2008.

My situation is:
1) Employer ran two pay slips (Jan 15 - 31 and Feb 1 - 15) and asked me to change to H4 with these two payslips. Once I get COS is that a problem later?
2) Since I have payslips from Jan 15th am I in status from Jan 15th? So I will have only 105 days on out of status?
2) I also saw the rule 245(K) which states as long as the total out of status days after last entry is less than 180 it is still ok? So am I ok here?
4) For 245(K) I need to go out of uS and enter back. If I go out of US now and enter back on my H4 stamping, am I ok? Or is the rule 245(K) applies only if I enter back on H1?
5) Once I get the COS approved to H4, can there be any future issues? My Husband's Green Card processing is also going on. So will they ask to produce W2 or payslips from 2008 when I apply for any of GC stages like 485 or EAD?

Can you please suggest.

[orion]

Hi,
1) Employer ran two pay slips (Jan 15 - 31 and Feb 1 - 15) and asked me to change to H4 with these two payslips. Once I get COS is that a problem later?

"Employer ran two pay slips" without you working?? If yes, its then illegal and fraudelent. Beware, these days they are really scrutinizing everything.

[txh1b]

**** pay stubs, **** experience, **** everything. This is just ruining the reputation of H1bs. Fraudulent and illegal actions by employees along with their employers. I wish the enforcement will fume the rats out of hiding. One good thing this recession will do is get rid of these shady employers and employees.

[jsep08]

what i mentioned as not working is on a client location. employer did not have any opportunity for me. i was available for work and was checking with them also for any opportunity.

any help with the questions?

[txh1b]

what i mentioned as not working is on a client location. employer did not have any opportunity for me. i was available for work and was checking with them also for any opportunity.

any help with the questions?

That is benching without pay and is illegal. You should be paid real money for that time also. That is the law.

[jsep08]

Thanks for the response.

1) Any idea once I get the COS, will the nonpay period cause a problem later? (if i do not go for WH4)
2) Since I have payslips from Jan 15th am I in status from Jan 15th? So I will have only 105 days on out of status? (Oct 1 - Jan 14)
2) I also saw the rule 245(K) which states as long as the total out of status days after last entry is less than 180 it is still ok? So am I ok here?
4) For 245(K) I need to go out of uS and enter back. If I go out of US now and enter back on my H4 stamping, am I ok? Or is the rule 245(K) applies only if I enter back on H1?
5) Once I get the COS approved to H4, can there be any future issues? My Husband's Green Card processing is also going on. So will they ask to produce W2 or payslips from 2008 when I apply for any of GC stages like 485 or EAD?