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Change of status H1b to H4 to H1b

Montclair, NJ |


I came to US in 2006 on H4 visa with my husband on H1b. I am a masters in Computer Application with some experience in India. This year, a company sponsored an H1b for me and I got the approval in oct 2008. But the company has not paid me due to non availibility of work since october. Now, the company is asking to change my status back to H4 and when they have work they will file an application to change it back to H1b. As per them changing the status back to h1b will not have to go through quota procedure

Please let me know if its true.

For my spouse, We changed from H4 to H1 in December 1st week. So far her employer is not able to find a Job for her. What are our options ? In the worst case, if we have to chang back to H4 from current H1 status, will there be any impact in the future ? Will she be able to change it back to H1 from H4?

Attorney Answers 1

  1. Changing status back to H-1B will not be counted against the cap again. INA 214(g)(7). However, in your case, one potential problem I see is that you have been "benched" for nearly 6 weeks. The petitioning company has to pay you whether there is work or not. If you change to H4 and then back to H1B there is a chance that CIS will ask to see whether you were paid and validly worked from 10/1/2008 through the date your H4 change of status application was filed.

    Your company should pay you this salary. Others may want to chime in here to relate their experiences.

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