H4 to H1- extension and travel

[vin15]

Hi ,

I am currently in US on h4 visa. I applied for h1 visa for 2011 and it is approved.I would like to get clarified in the following.

1)My H4 visa expires on Sep4,2010.My husband's company are filing extension for his H1. Is it advisable to extend my H4 visa? Will it cause any problem to my approved H1?

2)If H4 extension is not filed I will be out of status from September to October. What should be done in that case?

3)Is it advisable for me to travel on H4 visa to india and return back before my H4 expires and continue on H1 visa?

Thanks in advance

[shervin143]

1)My H4 visa expires on Sep4,2010.My husband's company are filing extension for his H1. Is it advisable to extend my H4 visa? Will it cause any problem to my approved H1?
>>> This is a bit tricky. As per the last action rule, the last received I-94 takes precedence over all the other I-94 and your status will change as per that I-94. If you receive your H4 approval before September, then on Oct 1st your status will change automatically to H1B and you are all good. But of the H4 approval comes after Oct 1st, then it will put you back in H4 status. You will have to file for a COS to H1B again and wait for it to get approved, or you will have to leave the country, get the H1B stamped and return back on the H1B visa.

2)If H4 extension is not filed I will be out of status from September to October. What should be done in that case?
>>> The best opetion is to leave the country before your current I-94 expires. Get the H1B stamped and return back in the last week of Sepember on the H1B visa.

3)Is it advisable for me to travel on H4 visa to india and return back before my H4 expires and continue on H1 visa?
>>> You can do that provided your husband's extension is approved. You can travel back with your extisting H4 visa and your husband's extended petition, which will get you a new I-94 that is valid until the expiry date of the H1B approval notice of your husband. And on Oct 1st your status will automatically chnage to H1B.

[vin15]

H4 extension

Thank you shervin for the explanation. It would be great if you advice me for the following.

Is there any grace period after my I94 expires.

Thanks in advance

[shervin143]

Unfortunately, there is no grace period.

Thank you shervin for the explanation. It would be great if you advice me for the following.

Is there any grace period after my I94 expires.

Thanks in advance

[vin15]

Sherwin,

Thanks for your information.My employer says there is grace period of 90 days to stay back in the country. So there will not be problem. But now I think I should take some proper measures to be in status.

[shervin143]

There is no such thing. If you do that, then at a later point when you go for visa interview, the fate of a successful stamping will rely on the Visa officer that you meet. I wouldn't take the risk of staying illegally beyond the I-94 expiry date. Employers always say that, because they can make money out of you for another 90 more days. The person who will be affected later is you.

[abhayg4]

Hi vin,

As correctly mentioned by Shervin-there is no such grace period once I-94 expires by law/rules.
I-94 date is till when you can stay in US i.e. you have to depart by that date (unless you have filed for an extension )

Thanks ,
Abhay

[vin15]

H4 extension

Thank you guys for your reply. I have planned to extend my H4 visa and if later problem occurs I can apply for COS.Hopefully my employer doesn't show his authoritativeness.

[vin15]

h4 to h1

Hi,

I got a mail from employer saying that overstaying of I94 expiry more than 90 days will only cause issues.He also quotes an example, if F1 students I94 expires in May of the year, and if they applied H1B in April and the start date is October (which is more than 90 days), they still can stay legal and valid, its called cap-gap period.

I am curious to know if any of his statement is valid and is there any cap gap period for H4 people also?

[shervin143]

Like mentioned before, there are chances that it can cause issues when you go for stamping next time or when you apply for GC. It might or might not cause issues. No one can predict. It all depends on the officer who handles your application.

So you can either take the chance and see where it takes you in the future or do the right thing by maintaining your status.

What is the point in having such a thing as I-94 with an expiry date on it, if people can overstay legally for 90 more days after it's expiry? Do you see anything that says "You can legally stay for 90 days beyond the I-94 expiry and after that you are in trouble" printed in your I-94?

Consult a good immigration attorney if you have more questions on this issue.

[vin15]

Thanks Shervin. I am not taking any risks of overstaying beyond the I94 period.I am going for the H4 extension. Also I will consult with Immigration attorney for making me more clear.Thanks for all your response.

[jim79]

H1 Vin,

I am also in same status.

My h4 expires on sep 23 and H1b approved from Oct-1.
In order to avoid out of status , I think I need to extend the h4(with my hus h1b). My issue is will that make my approved h1b invalid? ..I hope you have more information by now.

jim

[shervin143]

If your H4 approval comes with a new I-94 that is valid beyond Oct 1st, then your status will be H4 as per the last action rule and you cannot work for the H1B employer unless you file a COS again from H4 to H1B or leave the country and return back in H1B visa.

H1 Vin,

I am also in same status.

My h4 expires on sep 23 and H1b approved from Oct-1.
In order to avoid out of status , I think I need to extend the h4(with my hus h1b). My issue is will that make my approved h1b invalid? ..I hope you have more information by now.

jim

[jim79]

"If your H4 approval comes with a new I-94 that is valid beyond Oct 1st, then your status will be H4 as per the last action rule and you cannot work for the H1B employer unless you file a COS again from H4 to H1B"

does this mean that we have to apply for H1b again(new 129,797 ..) or just matter of transfer??

[shervin143]

No need for a new H1B or a transfer. Your employer need to file a change of status from H4 to H1B.

"If your H4 approval comes with a new I-94 that is valid beyond Oct 1st, then your status will be H4 as per the last action rule and you cannot work for the H1B employer unless you file a COS again from H4 to H1B"

does this mean that we have to apply for H1b again(new 129,797 ..) or just matter of transfer??