Need clarification on H4-H1B transfer

[osr]

Hi,

I have an offer from a consulting company, who are ready to file H1B this Apr 2009. The offer states that they will file for a COS from H4 to H1B for the H1 to be effective Oct 1 2009. I do not have the option of H1 without I-94 because they are paying all the H1B processing fees. However, in case I/they do not find a project for me within 2-3 weeks of Oct 1st, they will cancel my H1.

Most likely it will be clear to me by Oct whether or not I will find a project, in case I dont, in this scenario:

1. When do I apply for a COS back from H1-H4? How early should I do this?

2. If I do it within 2-3 weeks of Oct 1st, I will not have a paystub. Will this be a problem?

3. In future, when I want to transfer back to H1b, will it be considered as a "H1 transfer" for the new employer, that is, will it be cap-exempt and can it be done any time of the year?

3. My husband's H1b (and my H4) are valid until Nov 20, 2009. If I apply for COS(H1-H4), will it be accepted, or is it better to do a consular processing for H4 along with my husband's H1b renewal?


Appreciate any replies,
thanks,
-osr

[orion]

If filed as COS, you'll have to work from Oct 1, or you fall out of status. And then you cant change your status back to H4 because you have been out of status.

1. On Oct 1 they should receive the COS application if you dont have a job.
2. Yes, since you have been out of status for 2-3 weeks.
3. If H1 is cancelled, you cant transfer and will have to go through lottery again.
4. COS will most probably be denied if you are not working and out of status.


I see this as a trap by the employer safeguarding their position but compromising yours.

[osr]

Thanks for the response. In response to 3.
3. If H1 is cancelled, you cant transfer and will have to go through lottery again.
>> Is it not true, that once a H1B petition is approved, it is valid for 6 years, and while applying for a new petition with a new employer, it is cap-exempt?

Also, if my husband goes for his H1B renewal earlier than Nov, (may be sometime in Aug/Sept), can I remain in US on valid H4 status until Oct, (without going for stamping along with him) since I would have applied for H4-H1 COS?

thanks,
-osr

[txh1b]

Yes, that is correct. Once a H1b is approved, if the alien can produce some proof of approval, the cap does not apply again even if the H1b is cancelled by the employer.

Read the FAQs. Once the H1b kicks in on Oct 1st, you need to be paid or any status adjustments from within US is not possible.

[osr]

Thanks for the quick response. Please also give me a clarification on this:

>> If my husband goes for his H1B renewal earlier than Nov, (may be sometime in Aug/Sept), can I remain in US on valid H4 status until Oct, (without going for stamping along with him) since I would have applied for H4-H1 COS?

>> If I decide before Oct 1st, that I don't want to use the H1B visa, then what happens? I assume that USCIS will have to receive a COS application for H1-H4 on Oct 1st? In this case, will a future H1B petition be cap-exempt as well?

thanks,
-osr