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H1 through Consular Processing & Change of Status from H4 to H1 within US

Discussion in 'Working Nonimmigrant Visas' started by vinay_paradkar, May 16, 2011.

  1. vinay_paradkar

    vinay_paradkar Junior Member

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    Hi Ron,

    This question is for my wife, who applied for H1 in 2009 (for FY 2010 quota). The employer applied for H1 through consular processing (US Consulate: New Delhi, India; we are resident of Mumbai, India). The H1 petition got approved for 3 yrs (valid till 09/18/2012). She holds a BS in Computer Engg. (University of Mumbai, India), plus 5+ yrs of IT experience (Mumbai, India).

    Due to non availability of projects (bad economy) and health issues, my wife did not look for projects. Now, in 2011 she is getting interview calls.

    In order to activate the H1 there are 2 options:
    Option #1: Go to India for stamping, return to US with H1 visa stamped and start working on a project.
    Option #2: Employer files for COS (H4 to H1) within US and she starts working on a project after completion of all formalities (LCA, SSN etc).

    My question to you are as follows:
    Q1: According to you, which option is better?
    Q2: If we go ahead with Option #2, what are the risks involved?
    Q3: Can the employer go ahead with COS via premium processing?
    Q4: What are the chances of facing RFE issues?
    Q5: Will there be any problem in this case as H1 was not activated for almost 1.5 yrs?

    Currently, my wife is on H4 visa, which is valid till 09/30/2013.

    Thanks,
    Vinay
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: H1 through Consular Processing & Change of Status from H4 to H1 within US

    If your wife has not been working, and is still holding an H1B I-94, then she has a serious problem with her immigration status. She needs to consult with expert immigration counsel to resolve it.
     
  3. vinay_paradkar

    vinay_paradkar Junior Member

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    Re: H1 through Consular Processing & Change of Status from H4 to H1 within US

    Hi Ron,

    Thanks for a quick reply. One correction. My wife got H1B approved through consular processing, but her H1 is not yet active. Her H1B petition does not have an I-94 portion at the bottom of I-797 form.

    She still holds H4 I-94 (visa stamped in Dec-2008 in Mumbai, India). Then, in 2010 when my H1 extension got approved for next 3 yrs, her H4 also got approved for next 3 yrs (valid till 2013).

    Now, we are trying to convert her H4 to H1B within US.

    Please advice about the COS process within US.

    Thanks,
    Vinay
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: H1 through Consular Processing & Change of Status from H4 to H1 within US

    She needs to get into H1B status before she can work. This can be done by getting a visa and then entering the U.S. or by applying for change of nonimmigrant status. To apply for a change of nonimmigrant status, the USCIS is going to want to see proof that she has an immediate job available under the original petition.
     
  5. vinay_paradkar

    vinay_paradkar Junior Member

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    Re: H1 through Consular Processing & Change of Status from H4 to H1 within US

    Thanks for a prompt reply (as usual)

    Regards,
    Vinay
     
  6. Johnna

    Johnna New Member

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    Hi,

    Mine is the same case. I do have h1 approved under consular processing and currently on h4 visa. Now need to convert h4 to h1 being in US.
    Did you get your COS approved?

    Ron,
    Is it valid to apply for COS when your H1 is proceed under consular processing?

    Regards,
    Johnna
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You have the legal right to do so, but it may be complicated. Why was consular notification selected?
     
  8. Johnna

    Johnna New Member

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    Thanks for the quick response.

    I am not sure. My employer did it as consular processing.
    So it is complicated but it is possible to do so. What can be the complications?
    What are the other options if I do not want to travel back to home country?

    Thanks,
    Johnna
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If consular notification was selected because of concerns about your lawful status, then you shouldn't apply for change of status. If not, go ahead and apply.
     
  10. Johnna

    Johnna New Member

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    I am not sure what lawful status is. Can you elaborate more?
    Does consular notification requires a reason like this when filing?

    Thanks,
    Johnna
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Lawful status means that you always did what you were supposed to do. Let me give you some examples of things that are status violations:
    • Being paid less than the salary shown on the LCA.
    • Working at a different job site without amending the H petition.
    • Working on a side job without permission.
     
  12. Johnna

    Johnna New Member

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    Hi Ron,

    I am back again with a query regarding my COS. As mentioned earlier, my COS for h4-h1 was applied and it got approved so currently i am on h1 but issue is my h4 extesion was already applied before COS was applied. H4 extension is still pending. So now if that gets approved, will that change my status back yo H4?
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You need to consult with expert counsel on this. You should withdraw your pending H4 extension.
     
  14. Johnna

    Johnna New Member

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    In case if it gets approved before getting cancelled, what status will be active?
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Likely it would be the second. Get a withdrawal on file ASAP. If they approve it after that, you can go back to them and ask them to fix it because it was their error.
     
  16. Alnids

    Alnids New Member

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    Hi Ron,

    I have something similar for my wife.

    She entered US on a H4 while her H1 was still under RFE (consular case). In the month of March 2017 after upgrading to premium, her H1 got approved for a year i.e. till March 2018. She came to US by taking a break from her employer, who holds her visa. Her break period is getting over on 30th June. If she does not rejoin by returning back to India then she would have to resign.

    Her's being a consular case, the current employer informed us that the COS cannot be done here in the US and she has to return to India get her visa stamped and come back to the US with an I-94 saying H1. Though it seems fine but the issue here is, that the current employer does not have any projects on which they can place her without filing an amendment. This amendment would also be filed in India as per them.

    If the amendment is filed, with the premium processing being closed for now she would not be able to travel back soon. On top of this, due to some internal policies they would not allow to travel just on the receipt number of the Amendment. And no client would wait for a resource to join that late.

    If we decide for her to stay back, the current employer would withdraw the petition. In this case will the new employer, if we find one, file for a new H1 under cap exempt just using the receipt number (as we do not have the copy of the I-797, just the receipt number) or it shall be treated as a fresh case and she will have to go through the whole stuff once again.

    An early reply would be great as we need to decide whether or not to resign and stay back or return back to India and come back when ever everything is done (stamping + amendment).

    Thanks
    Alok
     

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