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COS H4 to H1 then COS H1 to H4 with an upcoming overseas trip. Need HELP !!!

Lyndhurst, NJ |

I arrived in US in Jan 2011 on H4 (Stamped Visa & I-94 SEP 2014).

1. Applied for H1B visa under 2013-2014 quota with COS and got an approval last month .
2. For personal reasons I need to remain on H4 visa even after 1st Oct 2013.
3. Today we are planning to apply a COS from H1 to H4 .

Q 1. I am planning to travel to India in November. for 1 month. Will I need to go for a new H4 Stamping ? Can I return on the current Stamped H4 Visa ( valid till 2014 )
Q 2 . If Change of status is Pending by the time I leave US. Will that create any complications in future ?

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Attorney answers 3

Posted

How will you filed for COS from H-1B to H-4 when you probably are not in H-1B status? If you were subject to the quota H-1B start date should be Oct 1, and unless you move to H-1B and maintain that status, you cannot seek a change to H-4.

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. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.

Asker

Posted

We are requesting a COS from H1 to H4 starting 1st Oct 2013. Currently I have I 797 with an approved H1 B Valid from 1st Oct 2013.

Tripti Sharad Sharma

Tripti Sharad Sharma

Posted

Again, how can you file for COS without first maintaining H-1B.

Asker

Posted

Do you mean we need to wait till OCT 1st to apply for a Change of Status from H1 to H4 ?

Asker

Posted

Please suggest what should we do ?

Tripti Sharad Sharma

Tripti Sharad Sharma

Posted

2 options, join the H-1B employer or depart the U.S. You may apply to change status after you change to h-1B and maintain your H-1B status.

Asker

Posted

Our lawyer suggested that we should apply for COS before OCT 1 2013 so that H1B does not kick in from 1st OCT 2013. We have a unexpected travel on the way and want to stay on H4 visa for few more months, Please advice

Tripti Sharad Sharma

Tripti Sharad Sharma

Posted

I strongly recommend you get a second or third opinion.

Posted

I agree with Attorney Tripti. Your facts do not seem to make sense. You need to consult with an experienced immigration attorney as soon as possible.

CELLA & ASSOCIATES, LLC
National Toll Free: 877.583.7080

National Toll Free: 877-583-7080. Having practiced immigration law for over twenty years, Joseph Cella, Esq. has the breadth of experience necessary to successfully handle the most complex immigration matters. The answers provided herein neither constitute legal advice, nor create an attorney/client relationship.

Asker

Posted

So, what is the option to remain on h4 after 1st oct?

Posted

You can simply enter on the H-4 visa and that would change your status assuming you still qualify for same. If you don't have a H-4 visa, you will need to apply for same. This of course assumes that you have properly maintained status in the U.S. e.g., COS as of 10/1/2013 to H-1B e.g. pay statements, etc. I would consult with an immigration attorney on the specifics.

Harry Asatrian | Partner STRASSER ASATRIAN, LLC 140 E. Ridgewood Ave. Third Floor, North Tower, Ste. 360 Paramus, NJ 07652 Direct: 973.735.2716 | Fax: 973.735.2717 Email: hasatrian@strasserasatrian.com www.StrasserAsatrian.com The answer provided herein is not legal advise and should not be construed as such by anyone. It should not be relied upon as legal advise as more specific facts, research and analysis may be required to formulate a proper strategy and action in your matter. Please note this does not create an attorney-client relationship whatsoever.