Entering on H4 visa while H1B is pending approval after applying under CP.

[seattle12]

Hello

I have a valid H4 VISA till March 2013. I was living in USA on H4 visa till 2011 December and then came back to India. I have 6+ years of valid work experience and managed to get a sponsorship from a USA based consultant company to file H1B this year and i am waiting for the H1B petition to be approved. Since i was outside USA when H1B was filed i will not get i94.

I will be travelling to USA next week on H4 VISA.

I would like to know my option to start working as soon as the H1B is approved.

1) Is it possible for me to apply for change of status from H4 to H1 without going for stamping?
2) Is it allowed to file change of status in this case?
3) Is it mandatory to go outside USA and get stamping done in my case?


Thanks

[shervin143]

1) Is it possible for me to apply for change of status from H4 to H1 without going for stamping?
>>> Possible.

2) Is it allowed to file change of status in this case?
>>> Yes.

3) Is it mandatory to go outside USA and get stamping done in my case?
>>> No. You cannot work until the COS gets approved (with a new I-94).

[seattle12]

Thank you so much for your response. it really helps.

Could you please clarify the below questions-

1) Just out of curiosity - Can you please explain when will it become mandatory to get the stamping done instead of filing for COS?

2) I heard that i must go for stamping if the H1B petition is applied and approved through CP. Can you double confirm its not true?

3) Is it possible to file the amendment for COS before its even approved as i will be in US next week? Will it really help?



Thanks

[shervin143]

1) Just out of curiosity - Can you please explain when will it become mandatory to get the stamping done instead of filing for COS?
>>> If you file the H1B for COS (It is possible to file the COS only if you are inside U.S) and if it gets rejected (no new I-94 associated to H1B), then you will remain to be in H4 status and you cannot work until you leave the country, get the H1B visa stamped and return back in H1B visa. Atthe POE, by showing the H1B visa and petition, you will get an I-94 associated to H1B which will put you in H1B status allowing you to work for the H1B sponsor.

Also, if the H1B gets approved as a COS, then you should be working from day 1 of H1B effective date and get paid. If not, you are considered out of status on H1B. If you think you cannot work immediately, then file the H1B for CP instead of COS. This is secure a H1B CAP (if filed as a brand new H1B) and whe you are ready to work, either file the COS or leave the country and return back in H1B visa.

2) I heard that i must go for stamping if the H1B petition is applied and approved through CP. Can you double confirm its not true?
>>> You can enther go for stamping and enter U.S in H1B visa and start working immediately or enter in some other status (like L1/L2 or H4) and then file a COS to H1B. The employer will end up spending additional money for the COS and more if you want to get it done in premium. If processed in normal, you will have to wait for 2-3 months to work as you cannot work until USCIS approves the COS. No other issues.

3) Is it possible to file the amendment for COS before its even approved as i will be in US next week? Will it really help?
>>> Not a good idea. It will uncesessirily complicate things. If you are in urgent, spend additional $1250 and upgrade the case to premium.

[seattle12]

Thank you so much for your valuable feedback.