Back to h4 from h1b without working.

Asked 8 months ago - New York, NY

My wife's COS to h1b was approved in Jan 2014. But she never joined the work as she did not agree with the terms of employment contract. Her employer has told that the employer would be revoking her H1b soon for not joining the work. Does she need to file anything to be back in the h4 status? or is it automatic? If she finds another employer now(or later after changing to h4), can that employer file her H1b without being counted for the cap? without the paystubs?

Attorney answers (4)

  1. Alexander Joseph Segal

    Contributor Level 20


    Lawyers agree

    Answered . She joined the company and ran out of status right the way. Now she needs to either seek nunc pro tunc adjudication of her H4 or seek consulate processing.

    The information contained in this answer is provided for informational purposes only, and should not be construed... more
  2. Tripti Sharad Sharma


    Contributor Level 20


    Lawyer agrees

    Answered . Since COS was approved but your wife did not join the employer, she did not maintain status since Jan 2014. Ideally she should depart and enter on H-4.

    This response is general in nature and cannot be construed as legal advice, given that not enough facts are known.... more
  3. John Robert Egan


    Contributor Level 12

    Answered . A change back to H4 is not automatic, there will need to be a filing. I agree with my colleague that the failure to take up the position is a problem that needs to be addressed, sooner rather than later. H-1B status is "portable" and can sometimes be transferred to a new employer, but only when the current H-1B status is valid and viable. Since that is in question, you should consult an attorney as soon as possible to determine the best course of action.

  4. Juan Paolo Pasia Sarmiento

    Contributor Level 15

    Answered . Has to file COS to go back. Might be a problem though. If she didn’t work for the company, CIS may deem her in violation of her status for some time.

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