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Apply for COS from H1b to H4 or just leave for India and come back on a valid H4 Visa already stamped.

Folsom, CA |

I have an H4 stamped until mid 2015, got h1b approved from oct 2013 through a consultant. However, due to personal reasons, I couldn't work, but have been running the payroll for a nominal amount, which I doubt is insufficient for h1b status for ~3 month. I have to go to India in July for about a month. Consultant is asking that I file for a COS from H1b to H4. but I have read that COS from H1b to H4 would take 3-4 months and I won't be able to leave the country when it is being processed. on the contrary, I have also read that I need not apply for COS and just go to India and come back on the h4 visa stamp that is still valid. Would the latter option jeopardize my ability to use the h1b in the future? I would like to come back on H4 and find another employer and then move to h1b again.

Attorney Answers 4


  1. Fly back to Hindustan and come back on your still valid H-4 visa stamp. Might need to prove your spouse maintaining valid H-1B status and your marriage being bona fide at the airport, however, brace yourself!
    No, that will not jopardize your ability to use the H-1B category again. The previous or any employer can petition you in the future, for the next approx. 5 years on an new H-1B. You will continue to remain "cap-exempt" for 6 years from the date you got your previous H-1B approved back in 2013, most likely as of October 1st.

    Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  2. If your question whether your change of status request has been abandoned because you left, not it was not.

    The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter,not should it be viewed as establishing an attorney client relationship of any kind.


  3. You may be able to leave the U.S. and return on your still-valid H-4 valid. Please see

    Mr. Shusterman's (former INS Trial Attorney, 1976-82) response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


  4. Talk to an attorney about how to timeline events so you don't violate any rules.

    This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. You are encouraged to seek independent and private counseling for a complete review of your case.

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