H1 RFE, use H4 for travel

[rahul1980]

Hi,

My wife got an H1 RFE on extension.
She came to US on H4 which is stamped till 2013 (as per my visa) and then applied for H1 last year and received it only for 1 year (till september end). We applied for extension in august 1st but till december no response received hence we upgraded to premium. Now she got an RFE and she has multiple layers in between. She is trying hard to get client letter as requested in RFE. I have few questions:

1) Suppose she is unable to get client letter and unable to respond to RFE, can she stay in the country using her H4 (which is valid)?

2) Also using H4 can she travel to india and back on H4 i.e. after surrendering H1

3) Since she is beyond H1 date of september, at this point can we look for a transfer to another company where there are no layers?

Appreciate response.
Rahul

[shervin143]

1) Suppose she is unable to get client letter and unable to respond to RFE, can she stay in the country using her H4 (which is valid)?
>>> Not unless she leave the country and return back in H4 visa. A COS from H1B to H4 is not possible when she doesn't have a valid I-94. If filed, it has to be a bridging petition where the chances are very less.

2) Also using H4 can she travel to india and back on H4 i.e. after surrendering H1
>>> Possible. There are also chances that she might get question for staying illegally (anytime spend in U.S without a valid I-94 is considered as illegal stay).

3) Since she is beyond H1 date of september, at this point can we look for a transfer to another company where there are no layers?
>>> Transfer might very well get approved without a new I-94 (for consular process). Search and read the posts that talks about bridging. Success rate is very less in your case.

[rahul1980]

@shervin143: Thanks for your quick response. After receiving H1 last year she has never travelled back to home country and hence her passport still shows H4 stamping.

So for pt#2: Even though we are still pursuing the extension beyond her H1b I-94 does that make her illegal? Or it will be if her case is further denied.

Thanks for the suggestion about bridging, I would look around.

[shervin143]

So for pt#2: Even though we are still pursuing the extension beyond her H1b I-94 does that make her illegal? Or it will be if her case is further denied.
>>> If the H1B extension gets approved, then she is all good. If it gets denied or if you withdraw it or if she leaves the country and the H1B gets approved for consular process, then anytime spend in U.S after the I-94 expiry date will be considered as illegal stay.

[rahul1980]

further update

Hi,
My wife got her h1 extension approval finally and went for stamping. At the embassy she got 221g green slip. After waiting 1 month she got a response that its been rejected sent back to USCIS for review. At that time we decided her to come back to US on H4 as we have heard that these cases are not resolved. 2 weeks after she came back lawyer got an email from USCIS that it has turned down the denial from embassy and reapproved it (surprise surprise).
Now does it mean she is back on H1? Or this reapproval has no meaning.

[kabkaba]

No, it only means that the petition is reconfirmed. She will have to change status to H1 (by filing amendment or traveling and returning with H1 Visa) in order to start working.

[shervin143]

Her status doesn't automatically chnage from H4 to H1B. Since she is already in U.S, the best option is to file a COS from H4 to H1B and when that gets approved (with a new I-94) she can start working. If she leaves the country, then she will have to appear for the H1B visa again if she want to enter U.S in H1B status to work.