Urgent Help needed.. Need to know what my status is...

[nids]

Hi

I was working on L1 till Feb'2011. After leaving my job I applied for H4(since my husband is on H1) on Feb 28,2011 and got the receipt notice on March 1,2011. I got an offer for the job in April 2011 and employer filed for H1b transfer (I was already cap counted) on April 22,2011 under premium processing. On May 9, attorney received the approval notice for H1B. Till now my H4 was in pending state. But on May 16, I got the approval notice for H4 as well. I have to start my job from may 23. Can I start that? Is there some problem? If yes, then how can I proceed?

PS: I applied for H4 on Feb 28 when my husband was working with employer A. He got a new job with employer B and they filed for his H1B transfer. He started his new job from May 2 and my H4 was filed when he was working with employer A.

[nids]

Urgent Help needed.. Need to know what my status is. (H4 or H1)

I called up USCIS and they told me that whichever petition was filed later, I will be on that visa(provided that petition got approved) irrespective of the approval dates.
Like in my case, H4 was filed on Feb 28 and H1 was filed on Apr 22. H1 was approved on May 9 and H4 on May 16. Even though H4 approval came after H1 approval I am on H1 because it was the latest petition and it got approved.

Can someone comment on this?

[shervin143]

Not true. Probably you understood them wrongly. Search and read about the last action rule. It doesn't matter which petition was filed first. Your status is determined by the last petition that got approved (with an I-94). If your H4 approval came after your H1B approval, then you are in H4 status.

I called up USCIS and they told me that whichever petition was filed later, I will be on that visa(provided that petition got approved) irrespective of the approval dates.
Like in my case, H4 was filed on Feb 28 and H1 was filed on Apr 22. H1 was approved on May 9 and H4 on May 16. Even though H4 approval came after H1 approval I am on H1 because it was the latest petition and it got approved.

Can someone comment on this?

[nids]

Thanks Shervin

I called them up again and this time they told me that I need to write a letter to USCIS stating that I need to cancel my H4 as I have approved H1B and I would like to move to H1B now. The lady also told me that I can start to work on H1B. USCIS will take action on the letter within 60 days.

What do you suggest for me?

[shervin143]

This is very tricky. You will never know what exactly is your status and if at all USCIS did make the correction. If you want to be 100% sure, then leave the country (return all your I-94s) and return back on H1B visa. You will get a new I-94 associated with the H1B and you can start working for the H1B employer.

If you are in H4 status now, then you cannot work until your status changes to H1B. Working in H4 status is considered illegal.

Thanks Shervin

I called them up again and this time they told me that I need to write a letter to USCIS stating that I need to cancel my H4 as I have approved H1B and I would like to move to H1B now. The lady also told me that I can start to work on H1B. USCIS will take action on the letter within 60 days.

What do you suggest for me?

[nids]

Thanks for the input Shervin.
1) According to last action rule do they consider effective date of Visa or the approval date? Like in my case, H1B effective date is May 9 and for H4 if effective date is before May 9(I haven't received the Receipt Notice yet), do I need to do anything?
2) Is it okay if I cross Mexico Border and enter US again? Will I be able to resolve this issue or do I need to go back to my home country and get the stamping done there?

PS: I do not have H1 or H4 stamped in my passport. I have I-797 with me.

[shervin143]

1) According to last action rule do they consider effective date of Visa or the approval date? Like in my case, H1B effective date is May 9 and for H4 if effective date is before May 9(I haven't received the Receipt Notice yet), do I need to do anything?
>>> The effective date plays the role. Whichever effective date is later will be your status beyond that date irrespective of which one got approved first.


2) Is it okay if I cross Mexico Border and enter US again? Will I be able to resolve this issue or do I need to go back to my home country and get the stamping done there?

PS: I do not have H1 or H4 stamped in my passport. I have I-797 with me.
>>> If you already have a valid visa, then there is no need for stamping. You can just leave the country and re-enter with the existing visa and the H1B approval notice (You don't have to go to your home country). Here is the important thing. You need to return all your I-94's when you leave and get a new one when you re-enter. For short visits to Mexico or Canada, they don't take your I-94s when you leave. If you end up using the same I-94, there is no point in making that trip.