H4 to H1 and leave USA when H1 Under Process--UREGENT---

[naveen_damera]

Hi

One of my friend came USA with family in Jan 28th 2008. She is working on H1and her husband came on H4.

And She applied H1 for her hubby for this year and in recent lottery it got selected.

Because of emergency they traveled from USA to India on July 1st 2008. Please can you clarify below my questions (Since they travelled when H1 is under Process):

1. The H1 which we applied will have impact because of this travel? If he comes back (they will be coming on July 22nd 2008) on H4 the H1 which we applied is Valid or not? Once he come back can he start work on H1? OR do he need to go for stamping?
2. Do we need to apply OR take care to make sure H1 will not have any problem?

What are the Possibilites if H1 Petion approved? OR If it is not yet approved but get the recepeit number?


Please can you replay me asap. Appreciate your help soon.

Thanks...

[contact 01]

Because of emergency they traveled from USA to India on July 1st 2008. Please can you clarify below my questions (Since they travelled when H1 is under Process):

1. The H1 which we applied will have impact because of this travel? If he comes back (they will be coming on July 22nd 2008) on H4 the H1 which we applied is Valid or not? Once he come back can he start work on H1? OR do he need to go for stamping?

There is a rule when a person within US apply for H4 to H1 as change of status, then he must not travel till the process is completed. USCIS has the right to reject the H-1B application by saying that the person has abandoned the process of H-1B.

or otherwise
USCIS will take a decision of consular process based on the merits of the case. In that case the person can work with the employer only after getting the H-1B stamping.

Therefore please check with the employer whether the H-1B application is filed as a change of status or consular process.

If it is a consular process then the candidate can travel out of US during the process of the H-1b application.

Note: This is not a legal advice. Please consult an attorney.

[naveen_damera]

Thanks a lot for your prompt response.

As I mentioned above we received the receipt number (I 797C), and the type of our case is I129, PETITION FOR A NONIMMIGRANT WORKER.

1. So if my friend's hubby comes from india on h4, what procedure we should follow to make use of the H1 which we applied? and how much time this procedure takes? shall he start work from OCT 1st?
2. If the h1 approved before he comes USA (he is coming on June 22nd), What will be his current status? is it H4 or H1? in this scenario also can he start work from OCT 1st on H1?

Please can you provide more dettails on this, we are so confusion. Appreciate ur help.

Thanks...

[contact 01]

As I mentioned above we received the receipt number (I 797C), and the type of our case is I129, PETITION FOR A NONIMMIGRANT WORKER.

1. So if my friend's hubby comes from india on h4, what procedure we should follow to make use of the H1 which we applied? and how much time this procedure takes? shall he start work from OCT 1st?
2. If the h1 approved before he comes USA (he is coming on June 22nd), What will be his current status? is it H4 or H1? in this scenario also can he start work from OCT 1st on H1?


You still did not under stand the point. All H-1B will be applied under I-129 form as non immigrant worker.

In every application there are 6 clauses in part 5 of the form I-129 in which you have to choose either the clause either Consular process or change of status or any other clause which is applicable to the beneficiary.

Therefore please ask the employer whether it is a consular process or change of status or amendment of stay, etc.

If your friend's spouse have recieved the approval notice with I-94 details [i-94 is arrival and departure record of the beneficiary] then it is a change of status.

Your friend will be in H4 status till september 30, 2008 and from October 1, 2008 onwards he will be under H-1B status and he can start working.

or

If your friend's spouse has recieved the approval notice without I-94 details instead visa stamping details of his home country then it is a consular process.

In this scenario, he can start working only after H-1b visa stamping.

Note: This is not a legal advice. Please consult an attorney.