H4 to H1: Approved but change of status rejected.

[leoindiano]

Guys, help me out here.

My WIFE H1 was filed in April, April 29th is the receipt date.
We filed H4 extension along with my h1 extension on may17th and got approved in 45 days. Both H1 and H4 are extended until july 2010.

Due to unavoidable reasons, she had to travel to india on june 3rd and she came back on July 12th on h4 status.

We got H1 approval notice from USCIS for her along with a denial of change of status due to her travel outside the country. What does this mean?

Note: This i-797 doesnt have i-94's with it.

1) She cannot use H1 until she goes out of the country and come back in?

2) Can she just continue on h4, if she doesnt want to use h1 approval?

I am trying to reach my lawyer, but it may take a while before i get a response from them.

[pd_recapturing]

Similar thing happened with my wife too but her H1 approval came when she was in India so she got it stamped at the consulate and entered US with H1. I guess, in your case, your wife needs to go to outside US to get the H1 stamped on her passport. She can't work without having it on the passport. I might be wrong too.

[leoindiano]

Here's what exactly it says....

"As Such, the beneficiary is considered to have abondaned the request for a change in status, and the request to change the beneficiary status is hereby denied pursuant to 8CFR 248.3(G)."

Since, she has her H4 extended till July 2010. Can she just stay on H4 and not use H1 at all?

Another thing is since, we are filing 485 now, she may not need H1 at all.

[waitin_toolong]

1) yes, she cannot use H1 without getting a stamp outside the country. That is why we tell you not to travel while COS or extensions are pending. You are only in status while you are in USA and cannot change from, extend a status when you dont have one. the same applies to adjusting from it to GC, by filing AOS.

2) If she does not depart the country and reenter with H1 she will continue to be on H4

[leoindiano]

She may just stay on H4 and wait for EAD to start working. I believe thats the best option at the moment. Please advice?

[sroyc]

Originally Posted by leoindiano

1) She cannot use H1 until she goes out of the country and come back in?

That is not true. You don't need a visa stamp to start working on H1. I have worked on H1 without a visa stamp after switching from F1 to H1. The change of status got rejected because she traveled outside the country while the application was pending. You probably need to apply for change of status again and make sure that your wife does not leave before it is approved.

I think the issue is that you get a new I-94 if you travel and the I-539 will have a new I-94 with the same number as your old one (the one you had at the time of application). That's why they don't allow you to travel while the petition is pending.

[shreekhand]

Well actually they did not reject the H1 petition but just the change of status. The change of status happens with a valid I-94 attached.

What you need now is a valid I-94 that says H1-B on it, and this would happen if your spouse leaves the country and comes back with a H1 visa stamped or file for change of status using form I-539. So if your spouse wants to save him/herself of that trouble, assuming that an EAD is applied he/she can wait for it to arrive and start working using it...a matter of 2-5 months depening on where the case is pending.

[leoindiano]

Originally Posted by shreekhand

Well actually they did not reject the H1 petition but just the change of status. The change of status happens with a valid I-94 attached.

What you need now is a valid I-94 that says H1-B on it, and this would happen if your spouse leaves the country and comes back with a H1 visa stamped. So if your spouse wants to save him/herself of that trouble, assuming that an EAD is applied he/she can wait for it to arrive and start working using it...a matter of 2-5 months depening on where is the case is pending.

Thanks Shree,

That is what i was thinking. She can just wait for another 4 months max, assuming 485 filing this week. If all goes well, she shud get EAD in 4 months. I have a PD of Nov 2004. I dont think that matters though in regards to EAD....:-)

[leoindiano]

Originally Posted by sroyc

That is not true. You don't need a visa stamp to start working on H1. I have worked on H1 without a visa stamp after switching from F1 to H1. The change of status got rejected because she traveled outside the country while the application was pending. You probably need to apply for change of status again and make sure that your wife does not leave before it is approved.

I think the issue is that you get a new I-94 if you travel and the I-539 will have a new I-94 with the same number as your old one (the one you had at the time of application). That's why they don't allow you to travel while the petition is pending.

Thanks Roy,

she dont have i-94 on the approval notice, In your case, you shud have got an I-94. So, she must travel outside and get I-94 for this H1 to start working? Looks like it if she wants to use it. I would rather not use it and wait for EAD.

Thanks again.

[a_yaja]

Originally Posted by leoindiano

In essense, it looks like they rejected the H1 petition. Not sure, why they sent approval notice without i-94's though.

The H1 petition was not rejected. Only the COS was rejected as the person travelled outside the country when the COS was pending.

[leoindiano]

Originally Posted by a_yaja

The H1 petition was not rejected. Only the COS was rejected as the person travelled outside the country when the COS was pending.

Agree, I deleted that post to avoid confusion.