H Visa FAQs

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

How to get back to H-1 status?

Authored on: Mon, 08/18/2008 - 01:00

Question

Answer

We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?
Ans1.  No problem. A few months (upto six months ahead) before August 2009, apply for Change of Status back to H- or a few days before he wants to join, have him go get an H-1 visa stamp.

Qo2. Since he will be applying for L1 to F1 now, Will that automatically cancel the H1 I-94 (to be effective from Oct 1) or do we have to do something.
Ans2.  In my view, nothing else needs to be done if changes status to F-1 now. Make sure he applies from L-1 to F-1 and attaches a copy of the H-1 approval also.

AOS Pending, Should H-1 be Renewed

Authored on: Wed, 07/30/2008 - 01:00

Question

Should H-1 be renewed while the AOS is pending?

Answer

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Two, if your AOS were to be denied (even in error), you would have no way to work, because the EAD goes with the AOS. And since there is no appeal against AOS denial, only an MTR can be filed. While the MTR is pending, you are not given a work authorization (as of now, July 2008). In addition, you would not be able to get n H-1 extension beyond the original six years because nothing is pending and "final action" has been taken on your green card. This could result in a situation that can be very dangerous. You do not have an H-1, a pending MTR gives you no legal status to sty in the US. Not only can you not work, you are deportable and you are accruing illegal presence even though the MTR is pending.

While CIS has done well to eliminate the first concern by reinstating the interim EAD issuance policy, the second concern still bothers me. While erroneous denials are few an far between (thank heavens), they do, nevertheless, occur. So, just maintain your peace of mind by keeping your H-1 active. That is my opinion. Reasonable people can easily argue against this and perhaps, their points of view may be just as valid.

All the above holds true, whether or not you intend to use AC21 portability.

Filling DS 156

Authored on: Sun, 07/06/2008 - 01:00

Question

Answer

I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

Qo1. Question 30. Have you ever been Issued a US Visa - Yes, but for the second part it says When - Does this have to be the date when the first H4 was stamped or the date the second change of status H4 approval notification came through. My understanding is that is the visa date when it was stamped. Can you confirm?
Ans1. The answer requires response only to the issuance of a visa – the stamp given by the US consulate. It does not refer to change of status. In your wife’s case, she came to US on H-4 visa. That is what they are asking about. The fact the she later changed to F-1 and then back to H-4 status (but no other visas were obtained) is irrelevant.

Qo2. Also in the additional visa issuances section do we need to mention the change of status to F-1/H4 information (I would presume no since these were not visa stampings but change of status). Can you confirm?
Ans2. Change of status is not a visa.

Qo3. Question 36: Has Anyone Ever Filed an Immigrant Visa Petition on Your Behalf ? Yes since my wife's name was on the I-140 as per your previous post. For the Part where it says by ‘Who’ what should she enter - Spouses Company Name or Spouses name.
Ans3. I would answer your name.