H4 to H1B Visa

[rahulagarwaljhs]

Hi,

My wife is currently in USA on H4 visa.

I've applied for my wife H1B visa from a company for the quota remaining for year 2010 on date 11-Jan-2011.

Due to some emergency my wife needs to travel back to India on 28-Jan-2011 and she will be back in US again on 04-Mar-2011.

Question-

1) Should there be any issue with her while her H1B visa is in process?

2) Also when she is entering again in USA on 04-Mar-2011, she will get new I-94. With this new I-94 would there be any issue.

3) Can she enter on her H4 visa?

4) Can she work once her H1B visa is approved?

5) Will there be any issue with her Visa status?

If there is any issue please provide me the solution or suggest me what should I do?

[shervin143]

You need to mention whether the H1B is applied as a COS from H4 or if it is applied as a consular process. It is never advisable to travel when a COS is pending with USCIS.

If she travels when her COS is pending

1) The COS might get denied if she leaves the country and the H1B could be approved for Consular process. In which case, she will need to go out of the country again to get the H1B stamped and return back.

2) If the COS gets approved when she is out of the country (by mistake), then when she re-enters in H4 visa, her status will be H4 and the employer will need to file the COS again to H1B which will take 2-3 months again by normal process or will cost an additional $1000 for premium process.

3) If the COS gets approved after her return, you will need to apply the last action rule to figure out what her actual status is. If by mistake she starts working on H4 status, that will be considered totally illegal employment and will cause a lot of issues later.

That is why it is never advisable to travel when a petition for COS or extension is pending with USCIS. One option is upgrade the petition to premium and travel after a decision is made (You will get the result in 15 days).