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Travel to India on H4 with new H1B petition approved but Change of status not applied

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tvravikanth

Junior Member
My wife is currently on H4 visa with valid visa stamping till Mar-2016. Her H1B petition is approved. However employer has not yet filed Change of status.
(1) Can she travel to India in November-2014( H1B petition has start date of 01-OCT-2014) and enter US on H4 visa
(2) When employer applier change of status from H4 -> H1B, is there a chance of denial because she did not go to consulate for H1B visa stamping (Not sure whether she can even go for stamping).
 


t74

Member
She can travel but cannot work until she is on H1B status.

Why would she not go for stamping? It is faster than change of status. Is there an issue with her employer?
 

tvravikanth

Junior Member
She can travel but cannot work until she is on H1B status.

Why would she not go for stamping? It is faster than change of status. Is there an issue with her employer?
Thanks for your prompt response. There is no issue with the employer. She wants to have some break before she can start employment.
 

t74

Member
Her employer filed on April 1 because he had work for her on Oct.1 otherwise he would have delayed filing. She may be subject to a lawsuit and/or termination for failure to appear.
 

tvravikanth

Junior Member
Her employer filed on April 1 because he had work for her on Oct.1 otherwise he would have delayed filing. She may be subject to a lawsuit and/or termination for failure to appear.
From employer perspective, he is fine with her delaying the joining date. He is OK if she joins sometime in Jan or Feb next year(2015) at which point of time he will file change of status from H4 to H1. We are not worried about employer. My worry is only with officer at port of entry. Do you think this should be an issue?
 

FlyingRon

Senior Member
From employer perspective, he is fine with her delaying the joining date. He is OK if she joins sometime in Jan or Feb next year(2015) at which point of time he will file change of status from H4 to H1. We are not worried about employer. My worry is only with officer at port of entry. Do you think this should be an issue?
Doubtful, if she has a valid H4 visa/stamping, the fact that she's trying to change status to H1 shouldn't be an issue. It would be a different story if she was coming from another type of visa.
 

t74

Member
It sounds like her employer is flexible and willing to pay the extra fees for COS so she should be fine. You do realize that she can have both H-1B and H4 stampings.
 

SS@1985

Junior Member
In the above scenario,how much will be the extra fees for COS ? and how much time will it take for this process of COS to complete?
 

SS@1985

Junior Member
Hi,

I am also in the same situation and am worried whether my wife's COS(which will be applied around Feb 2016 by her employer after she returns to US in November 2015 on her valid H4) might have high chances of denial because she did not go to consulate for H1B visa stamping before travelling back to US.
Will her COS be denied as she didn't get her stamping done before travelling to US in Nov 2015?
 

t74

Member
COS will not be denied for lack of stamping but may be denied for other reasons.

Until your wife has worked in H-1B status she risks losing it. An employer needing an employee should revoke the petition of individuals who do not make themselves available for work. It seems quite odd that she does not plan to work for many months after her return from India. It sure looks like there was no position for the filing.
 

SS@1985

Junior Member
Thanks for your response.
My wife now plans to travel on H4 and then apply for COS once she is in the US.
So now until she is through with the COS process she will be on H4 and not liable to pay any taxes(applicable to H1B holders), right?
 

t74

Member
Your wife may not file only her employer who may choose not to do so because of the costs and the need for her services before that time.
 

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