Travelling on H4 and H1 to be initiated

[pearl7s]

Hi,

My husband is in the US on an H1B and I am getting my H4 done so that I can travel in another 4 weeks.

Also, my company is going to initiate my H1B visa soon. I wanted to know that if I were in the US on an H4, how soon do I need to be back in India. Should I be back in India before my H1B petition is sent across to the USCIS or do I need to be back before the Petition gets approved by the USCIS (in about 3 months) so as to have no issues with the H1B visa.

Thanks in advance for your help.

Regards
Pearl

[shervin143]

You being in U.S in H4 will have no impact on your H1B petition being filed. There is no need for you to return back to India before filing the petition. There are two ways to file the petition. One as consular process (This is the only option available when the petition is filed when you are outside U.S) and another as change of status (This option is available to you when the petition is filed when you are already in U.S in a different status and you are NOT planning to leave the country until the H1B petition becomes effective - Oct 1st or later).

If the company files the petition for consular process, then upon approval, you need to leave U.S, get the H1B visa stamped and return back in H1B visa to work for the employer. If the H1B petition is filed as a COS, then upon approval, the H1B approval notice will include a new I-94 which will let you work in U.S without the need to leave the country. Only when you decide to go out of U.S, you need to get the H1B visa stamped to return back in H1B status.

[pearl7s]

Clarifying

Hi,

Thank you for your reply Shervin.

As I understand from my company they will not do a transfer but rather will be applying for a fresh H1B for me from India through the consular process.

So based on your reply I understand that once my H1B has been applied and approved I just need to come down to India anytime before October and get it stamped and my staying in the US on an H4 until then will not affect my H1B at all.

Regards
Pearl[/FONT]

[shervin143]

That is correct. However, H4 to H1B is not a transfer. It is just a change of status. Irrespective of whether you are in U.S or India, the company need to file a new H1B petition under a new CAP (since this is your first H1B petition) with a H1B effective date of Oct 1st or later. The only difference is, if you are in U.S as of the date of filing, then the company can file the petition as a COS from H4 to H1B and when the petition gets approved, you can start working as of the H1B effective date without the need to leave the country to get the H1B stamped.

Hi,

Thank you for your reply Shervin.

As I understand from my company they will not do a transfer but rather will be applying for a fresh H1B for me from India through the consular process.

So based on your reply I understand that once my H1B has been applied and approved I just need to come down to India anytime before October and get it stamped and my staying in the US on an H4 until then will not affect my H1B at all.

Regards
Pearl[/FONT]