Wife's H4 to H1 to H4

[visaspirant]

Hello,
Here's a snapshot of my scenario:

1.My first H1 with company A: Oct 2005 to Oct 2008 (stamped in my passport)
2.My entry to USA: May 2006
3.My wife's entry to USA on H4: Oct 2007 (stamped in her passport)
4.My second H1 with company B: Dec 2007 to Dec 2010 (Not stamped in my passport)
5.My wife's H1 with company C: Oct 2008 to Oct 2011 (Not stamped in her passport)

My wife is on H1 now and she could not get a job till now. Now we want to change her status back to H4. Whats the best way to do this? She plans to travel to India in Jan 2010 and I plan to travel to India in April 2010. Any help highly appreciated.

[martinvisalaw]

Your wife can't change her status because she is not currently maintaining status if the H-1B was approved as a change of status. CIS will only approve a change of status with proof that the applicant has maintained status. She needs to leave the US and return in H-4 status to effect H-4 status. She has been out of status since October 2008.

[visaspirant]

Originally Posted by martinvisalaw

Your wife can't change her status because she is not currently maintaining status if the H-1B was approved as a change of status. CIS will only approve a change of status with proof that the applicant has maintained status. She needs to leave the US and return in H-4 status to effect H-4 status. She has been out of status since October 2008.

Thanks so much Elaine!
I presume her change of status (COS) from H4 to H1 took place automatically when she received her I-797 Approval notice from CIS with an I-94 valid till Oct 2011. Is my presumption correct?

Now, will her next COS i.e. from H1 to H4 take place when she leaves the US and appears for H4 interview based on my current H1's (company B's) 1-797 Approval notice in consulate in India?

I dont have stamp of my current H1 (company B's) in my passport. I have only the old H1 stamp (company A's) in my passport, which is already expired. I also plan to leave for India for my H1 stamping. Which will be the better approach: she appearing for her H4 interview along with me when I appear for my H1 stamping or she going alone ahead of me for her H4 stamping? Many thanks in advance.

[number30]

Originally Posted by martinvisalaw

Your wife can't change her status because she is not currently maintaining status if the H-1B was approved as a change of status. CIS will only approve a change of status with proof that the applicant has maintained status. She needs to leave the US and return in H-4 status to effect H-4 status. She has been out of status since October 2008.

If the company has revoked the H1 prior to the start date does she still needs to apply for H1 to H4?

[visaspirant]

Originally Posted by number30

If the company has revoked the H1 prior to the start date does she still needs to apply for H1 to H4?

In her case, company has not revoked the H1 yet.

[martinvisalaw]

Originally Posted by visaspirant

I presume her change of status (COS) from H4 to H1 took place automatically when she received her I-797 Approval notice from CIS with an I-94 valid till Oct 2011. Is my presumption correct?

yes

Now, will her next COS i.e. from H1 to H4 take place when she leaves the US and appears for H4 interview based on my current H1's (company B's) 1-797 Approval notice in consulate in India? [

Your wife will be applying for a new H-4 visa, but it's not called a COS. That just applies when a person applies to change status while remaining in the US.

I dont have stamp of my current H1 (company B's) in my passport. I have only the old H1 stamp (company A's) in my passport, which is already expired. I also plan to leave for India for my H1 stamping. Which will be the better approach: she appearing for her H4 interview along with me when I appear for my H1 stamping or she going alone ahead of me for her H4 stamping? Many thanks in advance.

Either is OK. Once you have H-1B status it doesn't matter that you don't have a valid H-1B visa

[visaspirant]

Thanks again Elaine, for clearing much of the fog in my mind!

So when she appears for H-4 interview in consulate in India, will there be any questions on her H1 stay in US? Is there a chance of her H-4 getting denied in case if the officer finds her out of status stay?

Does she need to show proof of her in-status stay while in US for appearing for H-4 interview?

Are we allowed to appear for our interviews at any consulate in India or are we restricted to appear only that consulate which is in my area of jurisdiction?

[martinvisalaw]

Originally Posted by visaspirant

So when she appears for H-4 interview in consulate in India, will there be any questions on her H1 stay in US? Is there a chance of her H-4 getting denied in case if the officer finds her out of status stay?

It is unlikely. The officer will know that she violated status, because she must disclose this on the DS-156 or DS-160, whichever she will use.

Does she need to show proof of her in-status stay while in US for appearing for H-4 interview?

No, thankfully, because she can't

Are we allowed to appear for our interviews at any consulate in India or are we restricted to appear only that consulate which is in my area of jurisdiction?

You need to check the consulate requirements on this. They vary widely, and change frequently.

[visaspirant]

Thanks a ton Elaine! Your help is very much appreciated.

[uma001]

Originally Posted by visaspirant

Thanks a ton Elaine! Your help is very much appreciated.

You can try filing for COS from H1-H4 through a lawyer while she is in US. Most of the times H4 will be approved.My wife got it.