H-4 Visa FAQs

Tuesday, February 20, 2024 - 05:03

How to calculate time: H-1B grace period; H-4 COS; H-1B transfer delays

Question

Could you analyze the following situation from an H-1B 6-year Max Out perspective (No Approved PERM or I-140)?

1. Employee gets laid off by her H1b employer on November 20.

2. Employee files for H4 COS + EAD through spouse on January 10.

3. Employee gets a new job on April 10 while H4 + EAD is still pending. New employer files for H1b transfer, though no premium processing.

4. H1b transfer gets approved (I-797A with I94 issued) on June 10.

5. Employee works on H1b status based on the approved petition from June 10 to July 10. H4 COS + EAD gets approved on July 10.

My questions are:

1. Does the November 20 - January 10 period (Grace Period) count towards the 6-year H1b Max Out?

2. Does the January 10 - April 10 period (pending H4 COS + EAD) count towards the 6-year H1b Max Out?

3. Does the April 10 - June 10 period (pending H4 COS + EAD and H1b Transfer) count towards the 6-year H1b Max Out?

4. Once the H4 COS + EAD petitions are approved, would the January 10 - July 10 period be counted as "Time Spend in H4 Status" based on the pending petitions that eventually got approved? If not, which period can be claimed as "Time Spend in H4 Status"?

Also, how does USCIS keep track of all this? Is it the responsibility of the employee to make the case to USCIS and claim time as "Spent in H4 Status"?

Answer

Video URL

Friday, January 26, 2024 - 04:44

Optimizing H-4 EAD options and bundling premium processing for H-1B and H-4 extensions

Question

Currently on an H-4 visa valid until June 2024. I'm seeking your advice as I try to figure something out.

I'm a bit unsure about when to apply for my Employment Authorization Document (EAD), and I am considering the following options:

Option 1: Apply for H4 EAD now (first time - applying separately) since my I-94 is valid until June 2024. If I do this, can I keep working after June 2024 while the H4 extension and H4 EAD are in the approval process if the H4 extension is applied before June 2024?

Option 2: Apply for H4 EAD (first time) + H1B extension + H4 extension using the Premium processing option, probably during June 2024. Will the H4 EAD be approved in 15 days if all three (H4 EAD, H1B extension, H4 extension) are applied together in premium processing? Also, will the H4 EAD have a validity of three years if the H1B and H4 extensions are approved for three years?

Please guide me on which option is simpler and better or any other better solutions.

 

Answer

Video URL

Tuesday, January 23, 2024 - 02:07

Advantages of a National Interest Waiver, transitioning to EB-1, entrepreneurship, and H-4 employment for spouse

Question

I entered the US to complete my Masters on an F-1 visa in 2018, I got my H1B visa approved in Oct 2022. I was planning to go for a green card through the EB2 NIW route. I have a few questions, which are as follows:

1. Suppose that I got EB2 NIW approved and I am waiting in queue for a green card, but I went back to India and worked in India (employer may or may not be related to the US). Can I collect my GC whenever the priority date becomes current?

2. Suppose that I have already applied for an EB2 NIW visa but then I build my profile and want to apply for an EB1 visa, can I do that?

3. When can I start my business/startup during the EB2 NIW application process? or Do I need to wait until the visa is approved to start a business?

4. When can my wife start working on an H4 visa? Is it during the EB2 NIW application process? Does she need to wait until the visa is approved?

 

Answer

Video URL

Wednesday, May 24, 2023 - 03:33

Transitioning from H-1B to I-485 GC EAD: maintaining status and re-employment considerations

Question

I have received my GC EAD based on my dependent status and am currently on an H-1B visa. However, the project I am working on will soon come to an end.

Do I still need to maintain my H-1B status, or will I automatically be in GC EAD status if I stop maintaining H-1B?

If I take a break from work while on GC EAD and then resume working after a 3-4 month period, will my immigration status be unaffected?

 

Answer

Video URL

Wednesday, March 15, 2023 - 01:04

Volunteering on a non-profit board committee while on H-1B or H-4 visa: Implications for visa stamping and green card process

Question

Can a person on H-1B or H-4 visa be on the Board committee (Vice President) for the US based non-profit religious organization without pay (volunteer) ? Would it create any issue on visa stamping or GC process?

Answer

Video URL

Wednesday, March 15, 2023 - 00:50

Filing H-4 and H-1 simultaneously || Status of F-1 once H-4 is approved || Most efficient way to get EAD F-1 or H-4?

Question

My case in brief:

I am currently of F1 OPT (STEM), valid until 15th June 2023.

My company will be filing for H1B this March.

However, I am wondering if I should be filing for an H4 visa simultaneously.

Could you tell me how long it takes for an H4 visa and an h4 EAD to process?

If I file for an H4 visa in February, would I lose my f1 visa as soon as the h4 visa is approved?

Is there any new policy where I can get h4EAD sooner? And moved my F1 EAD to h4 EAD without any employment gap?

Should I wait for the h1b result before applying for an h4 visa?

What is the best scenario to switch from F1 OPT EAD to h4 EAD, without/minimum employment gap?

 

Answer

Video URL

Thursday, March 9, 2023 - 03:18

Can H-4 visa (no EAD) holders take an unpaid internship?

Question

I am an LLM student on H4 (no EAD). My college offers paid and unpaid supervised externships (optional classes) for 2/3 credits as part of our course. Can I participate and work in an unpaid supervised externship on H4 without EAD?

Answer

Video URL

Tuesday, February 28, 2023 - 20:16

H-1B layoff options - Going to home country and applying for jobs, going through the lottery again and documents required to apply for a new visa to explain missing pay stubs

Question

I am on an H-1B visa and recently got laid off.

If I don't find a job within the 60 days grace period:

1. Can I go back to my home country and keep applying for jobs and then come back once I get one? If yes, would I have to go through the lottery again?

2. If not, what are my options?

3. What additional documents do I need to provide while applying for my new visa to explain the missing pay stubs?

4. What does the company that let me go send to the USCIS as documentation for termination of contract?

 

Answer

Video URL

Wednesday, February 1, 2023 - 04:49

F-1 change of status and H-4 expires

Question

If I were to file for F-1 but my H-4 was going to expire would I have to file for an H-4 extension?

Answer

Video URL

Wednesday, February 1, 2023 - 03:41

Can you work on H-4 Visa?

Question

Can you work on H-4 Visa?

Answer

Video URL

Thursday, December 22, 2022 - 23:24

Gap in status, for instance, H-1B and H-4 status issues

Question

I was on F1, and my spouse was on F2. My H1B was approved in 2020 for client A, but COS from F1 to H1B was denied, so I just continued my F1 status. Later, I moved to client B, and my employer filed an H1B Amendment and got the complete approval with I-94, effective 29th April 2022. After approval, we filed I539 for my spouse's COS from F2 to H4 (still pending) with a receipt date of 17th May 2022.

Question: Since there is a gap between my H1B start date (04/29) and my H4 receipt date (05/17), may the USCIS deny our case? If so, what are our best options to proceed further?

 

Answer

Video URL

Wednesday, November 30, 2022 - 06:30

OPT eligibility requirements, F-1 status for one academic year, and Change of Status or visa stamping from back to H-4

Question

My spouse is a dentist from India and converted to F-1 from H-4 on Sep 29, 2022. She pursued a few courses for MBA (non-stem) between March 2022 and Jun 2022. Now she is completing the remaining courses of her MBA on F-1 for the next 12 months.

My queries are-

1. Does she need to be on F-1 status for a min 365 days to be eligible for OPT?

2. If we ever need to change to H-4 status again (stamped till Aug 2024), can she travel to India and come back without F-1 stamping? or a COS application from F-1 to H-4 ( that may take 6 months) could be a better option for EAD application.

 

Answer

Video URL

Friday, September 16, 2022 - 14:15

Husband not giving my H4 documents

Question

Hello, I am on h4 visa with approved ead. My husband has a valid h1b and an approved I-140. The situation is my husband doesn't give my H4 documents like ead and approval notice which are required by my employer and university for establishing my valid presence in US. Is there any way I can ask any authoritative body here in US to help me in getting me access to my own documents? I know my husband will be the primary applicant on h4 visa given I am dependent on his h1b visa. But does that give my husband a legal right to withhold my own documents without my permission or approval? I have a 2year old kid and because of his inability to support us I have to study and get a job and his actions are preventing me from doing so.

Answer

I think you can try two things. First, ask the USCIS for a copy of all your immigration papers. Go here: https://www.uscis.gov/records/request-records-through-the-freedom-of-in… Second, speak with local lawyers where your husband resides. It may be possible to get the police involved to recover your immigration documents. Those should be considered your personal property.

Friday, September 9, 2022 - 10:40

H-4 visa if H-1B changes jobs

Question

Hi, My husband is in USA working under H1B (his visa got expired last year) and I am a Canadian citizen living in Canada. We are Married for 18 years and we have 1son born in USA. We both applied for visa together (h1b for my husband and H4 for me) in Canada. We got visa interview date too but my husband’s company recently filed green card process for him. So, I believe he cannot travel to Canada if green card is under process. Can I go for visa interview by myself even if he is the main applicant and cannot attend visa interview?

Answer

Canadian citizens do not need a visa. Presentation of the H-1B approval and proof of relationship at the port of entry with proof of maintenance of H-1B status should be sufficient to gain H-4 status. See this entry also: https://www.immigration.com/faq/h-4-canadian-citizen I am unable to understand the rest of the situation. You are welcome to post a message for our next community conference call. We have one almost every other Thursday. https://forums.immigration.com/forums/free-conference-call-for-us-immig…

Friday, September 9, 2022 - 10:35

Main H1B applicant cannot attend visa interview

Question

Hi, My husband is in USA working under H1B (his visa got expired last year) and I am a Canadian citizen living in Canada. We are Married for 18 years and we have 1son born in USA. We both applied for visa together (h1b for my husband and H4 for me) in Canada. We got visa interview date too but my husband’s company recently filed green card process for him. So, I believe he cannot travel to Canada if green card is under process. Can I go for visa interview by myself even if he is the main applicant and cannot attend visa interview?

Answer

The same H-4 visa can be used even if H-1B changes employment. As long as the H-1B maintains status, H-1B revocation has no impact on the H-4 visa.

Friday, June 17, 2022 - 07:47

H4 STAMPING

Question

I transferred my H-1 to new company but my child still holds the old H4 which has validity till 2023 2023 March. Will he be able to use that H4 to get stamped while going to India now.

Answer

H-4 visa is not tied to your employer. Your change of employer does not affect a valid H-4 approval or visa.

Monday, May 23, 2022 - 09:36

H-4 visa stamping without H-1B stamping

Question

Hello Sir, I was in usa on j1 till recently and am in india going for h4 visa interview for the first time in June based on my spouse h1 (she has valid i797 and expired visa). She is now traveling to india next week due to family related issues and has to book visa dropbox slot and got one in October. Can I attend the interview in June while she is in india and waiting for her visa dropbox slot which is in October? Thank you very much.

Answer

I am not aware of any law that prohibits attending H-4 visa stamping before H-1 visa stamping. Your spouse has an H-1B approval. But the consulate can ask you to wait till the H-1B visa approval. Email the consulate to check how they would want you to approach this.

Monday, May 23, 2022 - 09:26

Question about H4 stamping

Question

Hi Sir, I have the H1B Extension approved and its valid till 03/2025. However, the H4 extension is still pending for my wife and son. I heard, even though the H4 extension is pending and H1 Extension is approved, dependents can get the stamping by referring to H1 Extension approval. Could you please clarify and if this is fine; let me know the process. Note: For personal reasons; my Wife and Son need to travel to India in June and they are planning to come back in October (Current stamping is valid 22nd Oct 2022)

Answer

H-4 visa stamping does not require any H-4 approval from the USCIS. The H-4 visa is approved based upon the H-1B approval.

Monday, May 23, 2022 - 07:54

H4 dropbox for my 2 year old kid

Question

I have an approved I-797 from my current employer. I am currently in India with a H1B Visa expired in 2018 (I travelled to US in Feb '17 and stayed till June '17) from my previous employer. While scheduling an appointment for a visa interview for me, my wife and my 2 year old toddler, it was shown that we are eligible for VISA interview waiver. My wife has an Expired H4 VISA in 2018, so she was also eligible for dropbox. My question is, will my toddler have any problem with getting a H4 since he doesn't have any VISA stamped in his passport, if we schedule the same dropbox date as neither me nor my wife has a valid VISA? should I book my appointment first and after I get my VISA should I book one for my wife and toddler ? Please advise as I do not want to risk a H4 rejection for my toddler

Answer

Check the website of the US consulate where you're going for the procedures. To the best of my remembrance, children under 14 are not required to be interviewed.

Wednesday, January 26, 2022 - 04:04

Are you eligible to become a naturalized US citizen?

Question

1. My Son was born in February 2020 in the USA, where my wife is on an F1 visa working on OPT. Due to the Covid19 pandemic, I couldn't meet my son for two years. Kindly suggest to me the way forward to meet my son and wife. I also tried to travel on a tourist visa and F1 Visa. Unfortunately, I got both rejections. I'm an Indian taxpayer and an IT employee. 

2. My brother is a US citizen, and he applied for our mother's green card. Everything is clear, all paperwork is done, but due to the pandemic, we are waiting for the interview date from March 2021. Do you have any information on how we get the date or how much time it will take?

3. My daughter is in Dallas, US, and under medical treatment. She is there with an IN40 visa. As a father, I want to be there during her medical urgency. How can I get a visa now to be with her in the US?

4. I am a US citizen currently in India. I am traveling back to the States in mid-February for two months and want to take my Indian-citizen senior citizen mother with me for that duration. Her last US tourist visa expired eight years ago. (She has an active Schengen visa on her passport) Is there a way she can get a short-term two-month visa to the US?

5. I stayed outside of the US for more than two years because of COVID-19. Am I eligible for naturalization? I came to the USA in August 2016.

 

Answer

*Please note that the queries have been put together and edited by the Economic Times to address similar questions at once and that the answers are clear and relevant to the audience.

1. My Son was born in February 2020 in the USA, where my wife is on an F1 visa working on OPT. Due to the Covid19 pandemic, I couldn't meet my son for two years. Kindly suggest to me the way forward to meet my son and wife. I also tried to travel on a tourist visa and F1 Visa. Unfortunately, I got both rejections. I'm an Indian taxpayer and an IT employee. 

You seem to be referring to a visa denial under Immigration and Nationality Act, section 214(b).

This law applies only to nonimmigrant visa categories. If you are refused a visa under section 214(b), it means that you did not overcome the presumption of immigrant intent required by law by sufficiently demonstrating that you have strong ties to your home country. Such ties are seen as a reason you will not be tempted to exceed your allowed stay in the USA.

When your spouse is already in the US, your ties to your home country are difficult to demonstrate. If you feel there is additional information that should be considered related to the visa decision, or there are significant changes in your circumstances since your last application, you may reapply for a visa. Note that visas like H-1, H-4 (if your spouse gets an H-1), and L-1 are immune from this problem. So, when your wife obtains an H-1B status, or you can qualify for an L-1 visa, you should not have the section 214(b) denials impede your visa.

2. My brother is a US citizen, and he applied for our mother's green card. Everything is clear, all paperwork is done, but due to the pandemic, we are waiting for the interview date from March 2021. Do you have any information on how we get the date or how much time it will take?

Because of the resurgence of the pandemic and a huge backlog of cases, it is unlikely we will see an immediate resolution of the delays. But consulates have indicated that give preference to families of immediate relatives, like parents, of US citizens. Also, the US consulates have started waiving some nonimmigrant visa interviews, which should streamline their operations for green cards as well.

3. My daughter is in Dallas, US, and under medical treatment. She is there with an IN40 visa. As a father, I want to be there during her medical urgency. How can I get a visa now to be with her in the US?

I am not sure what type of visa your daughter has, but your choice appears to be the same as for any other foreign national, a B visa. The consulates usually issue a B-1/B-2 visa or a B-1 visa for medical issues and attending family members.

4. I am a US citizen currently in India. I am traveling back to the States in mid-February for two months and want to take my Indian-citizen senior citizen mother with me for that duration. Her last US tourist visa expired eight years ago. (She has an active Schengen visa on her passport) Is there a way she can get a short-term two-month visa to the US?

You will have to apply for her tourist visa again.

5. I stayed outside of the US for more than two years because of COVID-19. Am I eligible for naturalization? I came to the USA in August 2016.

It appears that the continuity of your stay required for naturalization has been broken by an absence of one year. An absence from the United States for a continuous period of 1 year or more (365 days or more) will automatically break the continuity of residence. It appears you could apply after 4 years and one day after returning, or easier, 4 years and 6 months after returning. The USCIS provides the following example for your situation:

“An applicant for naturalization under INA 316 departs the United States on January 1, 2010, and returns January 2, 2011. The applicant has been outside the United States for exactly 1 year (365 days) and has therefore broken the continuity of his or her residence in the United States. The applicant must wait until at least January 3, 2015, to apply for naturalization, when the 5-year statutory period immediately preceding the application will date back to January 3, 2010. At that time, although the applicant will have been absent from the United States for less than 1 year during the statutory period, the applicant will still have been absent from the United States for more than 6 months (180 days) during the statutory period and may be eligible for naturalization if he or she successfully rebuts the presumption that he or she has broken the continuity of her residence.

If the applicant cannot overcome the presumption of a break in the continuity of his or her residence, the applicant must wait until at least July 6, 2015, to apply for naturalization, when the 5-year statutory period immediately preceding the application will date back to July 6, 2010. During the 5-year period of July 6, 2010 to July 6, 2015, assuming the applicant did not make any additional trips outside the United States that would cause USCIS to presume a break in continuity of residence, the applicant was only absent from the United States between July 6, 2010 and January 2, 2011, a period that is not more than 6 months. Therefore, no presumption of a break in continuous residence applies.”

Tuesday, September 21, 2021 - 05:39

H-1B Visa and seeking emergency visa appointment

Question

We are the parents of a minor (5 months) old U.S.Citizen daughter who is currently in India. We need to take our daughter to the U.S. for her 6-month vaccination doses. My H-1B visa and my spouse's H-4 visa need to be renewed, but unfortunately, there are no dropbox appointments available in any city. Is there a way an exemption can be made for our travel? I am a civil engineer who has built commercial facilities and will be building more commercial facilities in California, USA.

Answer

You can try seeking an emergency visa appointment based on medical reasons applicable to your daughter.

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…

Thursday, April 15, 2021 - 05:25

AC21 Job Portability

Question

Previously I was on H1B when my I-140 was approved. Currently I am on H4 status, not employed and my priority date became current.
Previous employer has provided Supplement J and I have filed I-485, I-765, I-131 concurrently. The Supplement J indicates (#9 in Part 6) I am not currently employed with the sponsoring employer.

Q1) Upon receiving AOS EAD, can I directly join a new employer after 180 days of pending I-485 if sponsoring employer doesn't have any open position?

Q2) Can I start searching for new job before 180 days of pending I-485, but join after 180 days? Or, I must have to start searching and interviewing for new job, only after 180 days?

Q3) At the time of filing AOS, my Supplement J indicated that I am not currently employed with the sponsoring employer. If I join the sponsoring employer upon receiving EAD, then do I have to send USCIS new Supplement J indicating that I am now employed with the sponsoring employer, knowing that it might take a decade for my Final Action Date to become current and I may not be employed with the sponsoring employer at the time of GC interview?

Q4) What if I need to change my employer after GC interview, but before receiving GC?

Q5) I heard, after 180 days of pending I-485, even if I change my job couple of times, I can take the Supplement J only from the employer with whom I will be working at the time of GC interview. But can I still send new Supplement J to USCIS from each employers everytime I change my job? Is that legally allowed? or, is there any concern? Because, it might take a decade for my Final Action Date to become current and within that timeframe I might have to change job 2-3 times.

Answer

Video URL

Tuesday, September 15, 2020 - 08:00

H-1B portability without a visa stamp

Question

I came to US on H-4, so I have only H-4 stamping in my passport. Got my H1b picked up in lottery two years back, and did COS to h1, and have approved i797A with I-94 and working with my current employer.

Got an offer from another company, and they filed my H1b transfer, and got the i-797A approval with I-94.

So my question here is, can I join the new company using the H1b transfer approval, even though I don’t have H1b stamp at all in my passport? Will this be a valid H1b transfer?, or should I go back to India to get my H1b stamping to join the new employer?

Answer

Watch the Video on this FAQ: H-1B portability without a visa stamp

Video Transcript

When you have an H-4 visa stamp and you came to the United States and you got selected in the lottery that means you got your H-1B and you got your change of status. If you change employers you can start working as soon as your change of employer paperwork is delivered to the USCIS. You do not need any H-1B visa stamp for that purpose. FAQ in detail...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, August 18, 2020 - 05:44

H-1B no notification of termination, 60 days grace period, etc.,

Question

My employer ended my employment due to COVID reasons on May 31, 2020 but I never received an official termination letter. Calculating the grace period depending on the assumed termination date mentioned above, I have till July 30 to find a new job. Should my new employer give me an offer or start the H1B transfer application before July 30? What happens if they fail to do so in time? Can I extend the grace period on the basis of having an offer in hand or maybe because of the pandemic? My final interviews with potential employers are being withdrawn because of the time restriction.

Answer

Watch the Video on this FAQ:

H-1B no notification of termination, 60 days grace period, etc.

Video Transcript

File a complaint against the employer with the Wage and Hour Division of the U.S. Department of Labor by filling up the form WH-4. You can also call them. 

The 60 day grace period works like this. The new employer must make sure that your H-1B transfer application is received by the USCIS within 60 days. So the LCA should be done, the package prepared and USCIS should receive your H-1B transfer within 60 days, otherwise you will be out of status and you will have to go outside the USA for visa stamping pandemic or no pandemic, also remember there is a proclamation that will stop you from coming back at least before December. Make sure you remain in status or at least file a B-2. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, July 28, 2020 - 03:07

Covid-19/Coronavirus applying for B-2 status

Question

I came to the US on H1b in 2010. My i140 got approved in Dec 2013. I joined a new employer on 21 Feb 2020. My H1B got approved till 20 Feb 2023, But I did not receive any receipt notice for my wife and my elder son H4. My employer told me that he applied for an H4 visa for my dependents.

Unfortunately, I got laid off due to COVID-19 and my employer notified USCIS on 8th June 2020 to revoke my visa. My priority is to find a new job. But in case I do not find any job I would like to move out of the USA, I do not want to accrue unlawful days. But, due to the COVID-19 situation in India, I am scared to travel to India.

My wife called USCIS and was asked to email USCIS on lockboxSupport@uscis.dhs.gov to notify her of the receipt number of my wife and son. But she has not received any response.
I want to stay in the USA until the COVID-19 situation becomes normal. As per the Document COVID Coronavirus Converting to B-1 B-2 status.pdf on your website, I can apply for a change of status to B1/B2?

Answer

Watch the Video on this FAQ:

Covid-19/Coronavirus applying for B-2 status

Video Transcript

Reach out to your lawyers and explain to them what is happening and tell them to make sure you get copies of everything. File for your family's B-2 if your H-1 is not filed within that 60 day I-94 time. If it is filed go ahead and file another H-4 application with them. For applying for EAD under certain circumstances please click here

FAQ in detail...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

 

Wednesday, November 21, 2018 - 10:33

Traveling Abroad While H-4 EAD is Pending

Question

I changed my job from company A to Company B. H1,H4,H4 EAD is approved for company A. I moved to company B and my H1 change of employer is approved. While H4 is pending with company B. Can my wife travel to India and apply for H4 visa stamping in India?

Answer

Watch the Video on this FAQ: Traveling abroad while H4 EAD is pending

Video Transcript

You can travel if you are already on H-4 and just your EAD is pending. If you have a change of status as well as an EAD pending don't travel. If only EAD is pending and you are already on H-4 that is ok. Please talk to your lawyers. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, July 31, 2018 - 06:40

Applying for H-4 Status While on Parole

Question

I have I-140 and I-485 pending. H-1B ended on May 2018 and applied for extension which is pending.
Spouse entered US under parole status and is valid till December 2018, H4 visa has expired in May 2018
Can spouse apply for H-4 extension after approval of H-1B extension? If so can it be done from USA or have to travel abroad for H-4 visa stamping?

Answer

Watch the Video on this FAQ: Applying for H-4 status while on parole

Video Transcript

You cannot really get a change of status because parole is not really status. It is just authorized stay which is legal, but not full status. So basically if you want to convert back to H-4 , it does not require any prior approval from the USCIS. You can just take the spouses H-1 approval and go outside USA get your visa stamped and come back. When you enter using your H-4 visa you are back on being on H-4 instead of being on parole and if the I-140 or I-485 etc., is still pending you can of course keep extending your advance parole. You can apply six months ahead of time before the expiration of the parole. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Wednesday, July 4, 2018 - 03:36

Can An Employee Withdraw An H-1B Petition?

Question

I'm working on H-4 EAD with company A. Company B filed for H-1B for this year and it was picked in lottery but no decision made yet, now I don't want H-1B and asked company B to withdraw the H-1B and he agreed to it and shared the H-1B withdrawal letter along with the I-129C notice. Just to make sure that the petition is withdrawn without any issues, can I also post the same letter again to USCIS with company's from address on it?

Answer

Watch the Video on this FAQ: Can an employee withdraw an H-1B petition?

Video Transcript

You should send a letter to the government in writing, certainly, even get it maybe notarized to assure the government that these are your signatures and say that you no longer wish to apply for a change of status and you are not going to take up that job. So you hereby withdraw from the change of status request under the H-1B. After you send a notarized letter give them a call as well and just tell them you have written and this is what you want to be noted and that you are not going to go through the change of status. There is no actual procedure for it, but this can be as secure as you can be to ensure that the government will not give you a change of status even though you don't want one. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Monday, February 19, 2018 - 03:41

Can I Get H-4 Visa Stamping While the H-1 to H-4 Change of Status is Still Pending?

Question

H1 to H4 COS pending from Jul 14 2017. I94 expired Nov 2nd. H4 to B2 applied on Oct 31 2017 as per our attorneys suggestion due to some delay with spouses visa. Spouse's H1 is now approved. I would like to get my H4 as soon as possible and apply for H4 EAD. Can I go to Canada/ any close by country and get my H4 stamping done while the petitions are pending or wait till H4 is approved? or going to India is my only option

Answer

Watch the Video for this FAQ: Can I get H4 visa stamping while the H1 to H4 change of status is still pending?

Video Transcript:

Absolutely no problem at all. You can go to any country of your choice, no harm done. Remember for H-4 stamping a prior approval from the USCIS is not needed. You walk in with your spouses H-1 approval and that's how you get your H-4. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Friday, October 27, 2017 - 05:05

Applying for Green Card while Holding H-4 Status; Applying for Green Card and Permanent Residence for Another Country Simultaneously

Question

I was on H-4 visa from Feb 2014 till Dec 2015. I was on H-1 visa from Dec 2015 to April 2017. In April my H-1B transfer got denied. Hence I applied for change of status from here (April 15 2017) and now my H-4 application is under process. In Dec 2016 (while I was on H-1B visa), I had applied for GC in EB2 category with my employer. My employer told me that my labor has been approved.<br>
1: Is there a website where we can check the status of labor if it has been approved?<br>
2: When can I file for I-140? Is it true that it has to be filed within 180 days of labor approval?<br>
3: Can my GC application continue whilst being on H-4 visa? <br>
4. Does the GC process, at any stage, require the applicant to be on H-1 visa?<br>
5: I am planning to start Canada PR procedure. Will my GC application interfere with Canada PR at any point?

Answer

Watch the Video of this FAQ: Applying for green card while holding H-4 status; applying for green card and permanent

residence for another country simultaneously

Video Transcript:

1. You have to go through your lawyer or your employer. You won't have access to it, but definitely, there is a website.

2. Within 180 days of the labor approval.

3. Yes of course. 

4. It does not. 

5. I don't see any problem with it, I know that at the border the Customs and Border Protection (CBP) sees that you have got two permanent residence applications going on sometimes they can raise a stink about it but in my opinion that's completely unjustified. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Wednesday, October 25, 2017 - 03:34

Pros and Cons of Adjustment of Status and Consular Processing for Green Card

Question

My H1B (6 years) was from 10/1/2004 - 9/30/2010 from 5 different companies.
Company A - PD(EB3) - Jun 19, 2007, I-140 applied on July 9, 2007, I-485 filed July 17, 2007 - got laid off Oct 31, 2008. - I-140 approved on Dec 29, 2008.
Moved to Canada in July 2012 and became Canadian Citizen in Apr 2017. I have been keeping Advance Parole active by visiting the USA every year.
Now I want to add my family in Canada(wife(Indian Citizen with USA visitors visa) and kid(Canadian Citizen)). Do you recommend AOS for myself and Consular Processing for my family?

Answer

Watch the Video on this FAQ: Pros and cons of adjustment of status and consular processing for green card

Video Transcript:

You have got your I-485 filed and that's a good thing and you kept it alive by keeping your advance parole alive, but you need a job offer and you need to file Supplement J. So if you want to take advantage of AC21 you have to move over to a new employer get a new job offer and use Supplement J to indicate to the USCIS that you are going through another employer. You have two choices. You can split the green card. You going through adjustment of status, you enter the USA with your Advance Parole and you file form I-824 for your family to go through green card processing through consular processing in Canada. So you can either bring them all in on an H-1/H-4 type visa or you can do your adjustment of status and let them do their consular processing.You should not convert yourself to consular processing that could probably end in the loss of a green card. You are taking advantage of AC21 which as far as I know is available only in adjustment of status. It is not available in consular processing. Hence adjustment of status for you and consular processing for your family makes sense. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Friday, August 25, 2017 - 04:05

Transfer from H-1 (with I-140 approved) to H-4 EAD

Question

I have approved I-140 with company A and my wife has her I-140 approved or over 2 years. I'm planning to move to H4 EAD. Can I file for H4 and H4 EAD concurrently? What would happen to my earlier I-140 and also to the GC process if I am on H4?

Answer

You can most definitely file H-4 and EAD together. Your green card process can continue even though you have changed your status.

Thursday, August 10, 2017 - 04:43

Does H-4 Require a Prior USCIS Approval for Visa Stamping?

Question

My dependents visa stamp on passport expires on Sept 1st 2017 and have valid I-94 till Sept 1st 2017 and this was with the previous employer A I worked for. I moved to a different employer B a year back and haven't filed H4 for dependents with employer B as it was not necessary. Now if my dependents travel to India prior to Sept 1st 2017, do I still need to file for H4 extension or is it good if they attend the interview at consulate in India and get visa stamped on passport without H4 extension using my approved I-797 (till 2019) with employer B.

Answer

Watch Video on this FAQ: Does H-4 require a prior USCIS approval for visa stamping?

Video Transcription

You do not need to get an H-4 extension from USCIS when you have certain derivative visas like H-4 or L-2. Those visas are given based upon the approval of the H-1 holder and the L-1 holder. For the dropbox facility, you have to look at the local rules. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Friday, July 14, 2017 - 10:43

Applying for H-4 Status while H-1 is Pending

Question

I got H1B approval from company 'A' till Oct 2015, filed H1B extension in May 2015. As there were no updates, changed extension regular case to premium and got RFE in 2016.Before responding to RFE got to know that company 'A' has some issues and no one was responding from company 'A'. So before 240 days completion of I-94 got visa transfer with company 'B' in a premium process. Now my H1b is in security check with company B. My Both H1b cases/receipts are still in pending status. I applied for H4 visa now within the USA and if any of my H1B cases get declined. Can I stay on my H4 visa receipt?

Answer

Watch Video on this FAQ: Applying for H-4 status while H-1 is pending

Video Transcript

Looks like you are basically in an authorized period of stay because your approval was only good till October 2015. They will not give it to you. You are better off going outside the USA for visa stamping. You should have your H-1 lawyers call the U.S. attorney's office and see if they can talk with the prosecuting attorney and get some kind of a letter or an email from them that that would make your approval possible because you have not committed anything wrong. You just happen to be caught in a case which is either being investigated or prosecuted. If it is being investigated there isn't much you can do, but if it is already being prosecuted and it's already in court you might be able to get around this problem because even if you go for H-4 visa stamping if there is a red flag on you, you might have trouble getting H-4 visa stamping. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, June 6, 2017 - 00:08

Extending H-1/H-4EAD; working while extension pending

Question

I am on H1 Visa, my H1, wife's H4 and H4 EAD expires on 7/18/2017. I will be completing my 6 years by 7/18/2017. My I-140 is approved. I have a question
1. Should I file for H4 EAD extension along with my H1 and H4 extension
2. Can my spouse (H4-EAD) work while her extension in progress?

Answer

Video URL

 

Video Transcript

1. Yes, you should. 

2. No. Once the current H-4 expires and EAD expires and you are waiting for the new EAD to arrive she has to stop working. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

Thursday, March 2, 2017 - 00:34

Will H-4 EAD Rule be revoked?

Question

1) Is it true H-4 EAD rule will be revoked by the government? <br>
2) My H-1B visa is going to expire in 14-Jan-2018 and if my employer submits my PERM application in the month of June (i.e. before 6 months of my current 6 years of H-1B visa duration).<br>
a) If my PERM is not approved before my current H-1B visa expires. Can I change to H-4 EAD at that time?<br>
b) If my PERM approved after change to H-4 EAD, Can I change back to H-1B?<br>
c) Is it possible to convert from H-1 to H-4 EAD without taking a break in employment?<br>
d) If my PERM gets approved after my current H-1B expires can my employer file for H-1B extension?<br>
3) I would like to move to H-4 EAD but I would like to come back to H-1B anytime in future, in that situation what is the best status for H-1B?<br>
4) If I apply for new H-1B is it comes under H-1 quota (After 6 years completes.)?

Answer

Watch Video on this FAQ: Will H-4 EAD Rule be revoked?

Video Transcript:

1. I don't think it will be revoked.

2a. Yes, you can if your spouse's I-140 is approved or she is in the 7th year of her extension.

2b. Yes, you can change back to H-1B.

2c. I cannot predict this question as it is a question of logistics. 

2d. Most definitely.

3. You can be in any status. If your right to activate or H-1B comes mature you can jump back to H-1B without any problem. 

4. It does not.

More...

Wednesday, March 1, 2017 - 23:20

J-1 Physician applying for following to join after waiver

Question

I am a physician currently in H-1B undergoing 3 years of J-1 waiver program which is set to be completed on July end of this year. My husband got his greencard through E-B2 category (rest of the world) in early 2013 When I was still in J-1. My name was included in I-140 but could not file I-485 due to my J-1 visa. I have been married since 2006 and came to the US initially on H-4 visa before getting residency in J-1 visa. Is there a possibility of filing my I-485 directly without waiting for the long I-130 approval process? Or is there any exceptions for a situation like mine such that spouse happened to be in J1 and could not apply for a change of status at the time primary applicant applied for I-485?

Answer

Watch Video on this FAQ: J-1 Physician applying for following to join after waiver

Video Transcript:

Yes, if you are in the USA in legal status and his priority date through which he got his green card is still current you should be able to file your I-485 directly. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, February 28, 2017 - 02:18

Changing Employers With An Approved I-140 After January 17 2017

Question

I have approved 140, Green card EAD/AP card in EB2 from company-A and passed more that 180 days. I have maintained H-1B status since last 9 years instead of using EAD/AP as the need to go India for marriage so my future wife gets H-4 easily. Just transferred my H-1B to company-B. Company-A will revoke my I-140 in March 2017 due to company policy. I have following questions to ask you.<br>
1. Shall I get H-1B extension (beyond 6 yr) in future with company-B after I-140 revoke from my previous employer?<br>
2. I have EAD/AP card from my previous employer. Is it required to start GC process like labor and I-140 application again with company-B if my previous employer revokes my I-140?

Answer

You can continue to extend your H-1 even after I-140 is revoked by the employer, IF, the revocation was sent more than 180 days after I-140 approval.

Under AC21, you do not have to start a new green card if:

1. Your I-140 is approved;

2. Your I-485 has been pending for 180 days or more;

3. You will take an employment same as or similar to your green card job; and

4. You file Supplement J.

Tuesday, December 20, 2016 - 10:26

Change of Status to H-4 - effect on priority date; maternity leave on H-1

Question

1. Planning to transfer from H1B to H4, I-140 approved with Jan2015 priority date. Can I keep the priority date after I change to H4? Intend to come back to H1 after few months.
2. Currently I'm 7 months pregnant and I work for a consulting company (employer) on H1B visa, Can I take maternity leave on H1B? If yes, for how long? will it be a paid or unpaid leave?
If not do I need to convert status from H1B to H4? If yes, can I change it back to H1B and work again or need to apply for a fresh visa?

Answer

Here is an interesting question, if I am on H-1 and I convert to H-4, does that kill or affect my priority date ? Answer is no. If you were on H-1  and you had filed a Green Card, you got a priority date and I-140 was approved now you changed to H-4 that does not kill your priority date. That's not the problem.

And the second part of the question was can I take maternity leave on H-1?

Yes, absolutely. How much you can take that depends upon the State law, so the Federal law and the state law combined that's the best way to decide. So the maternity leave definitely allowed and sometimes if in addition to maternity leave if some have medical necessity and you need to take more time off , you should be able to do as well and you would be considered to be on H-1 and you don't need to convert to H-4   for maternity leave reasons but you can do that also and you can convert back to H-1 later on.  

Friday, May 27, 2016 - 05:27

I-94 Given for Duration Shorter than Entitled

Question

On December 18th 2015 I came back to USA on H-4, at that time my old passport was expiring on September 19th 2015 so the Immigration Officer approved my I-94 until September 19. Later I applied for H-1 and it got approved on Feb 2nd 2016 and my H-1 is valid until Ending Validity Date: 12/19/18 with I-94 number in it. I renewed my passport now and I have validity until 2026.
Question: Do I have to go for stamping again to extend my I-94 validity? Or since I got new I-94 with my H-1B is that good enough.

Answer

Watch Video: I-94 given for duration shorter than entitled

Video Transcript: In this case there is one piece of information missing as in I do not know how long your I-94 was expired, how much is the difference between expiration of the old or the H-4/I-94 that was given to you during your last entry and the H-1 approval date beginning. So if that gap is more than 180 days you should consult with your lawyers or have a consultation with us if you like. But that needs to be evaluated very carefully because that has many ramifications. Remember errors made by CBP (Customs and Border Protection) can be corrected by just going back to the port or one of the many CBP offices all over the country. 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, April 19, 2016 - 03:35

Gap in Status

Question

A couple of questions on Gap in status:<br>

1. I am on H-1B and my project/job is going to end on April 29,2016 (Friday). I have my H-4 approved effective May 2, 2016. I will get salary slip from 1 April to 30 April. Do I need to have salary slip for May 1, 2016 (which is a Sunday) to maintain H-1B/ legal status (considering that I won't be getting May 1 to May 31 salary slip).<br>

2. I am currently on H-1B and have an approved H-4 Effective 15 July 2016. As part of my H-4 application (which I had filed along with my spouse extension) , I had requested USCIS to give me H-4 effective date of 13 May 2016 as my project was going to end on 13 May 2016. But, the request was not honoured and USCIS responded citing the reason "Since the beneficiary of the I-539 and I-765 will change status, we cannot give an earlier start date than what is shown on the I-129 approval notice." If my project ends on 13 May 2016 , should I leave the country as my H-4 effective start date is 15 July 2016 to maintain legal status ?

Answer

Watch Video: Gap in Status


Video Transcript:

Answer 1: These kinds of de minimis small gaps are sometimes  even a product of the way the government works. In your case I don't think it is going to be a problem. Technically yes even for one day being out of status the government can say you are out of status, but when they have already approved your status I don't think this is going to be a major issue. 

Answer 2: I personally think it is still not a big issue because  if you got the H-4 already with an I-94 attached I doubt if the government is going to make an issue out of it. But you can do another thing. You can file a tourist visa to cover you for those two months but make sure it does not go beyond July 14. Other wise your status will be changed to B. So you could do a stop gap kind of arrangement or you could leave USA for a couple of months. But even if you stayed I doubt whether it is going to be an issue. 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Wednesday, April 6, 2016 - 02:04

Does H-4 EAD have to be applied again if H-1 changes jobs?

Question

I am currently on H-1B(Valid till Sep 2018) with approved I-140 for Company A and spouse has H-4 EAD (valid till Sep 2018). My question is, if I switch my job to a company B. Can my spouse continue working with the current H-4 EAD (which is valid till sep 2018)?Will it cause any issue during next H-4/EAD extension?

Answer

Watch Video: Does H-4 EAD have to be applied again if H-1 changes jobs?

Video Transcript: The answer is of course not. The only time you have to worry is if you fall out of status. As long as you are maintaining status every time you change jobs her H-4 and H-4 EAD is good until her H-4 and H-4 EAD is about to expire there is nothing else you got to do. She can continue working and she need not change H-4 every time you change H-1.

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, April 5, 2016 - 02:37

Travel while H-1 COS is pending

Question

My Spouse is on H-4 and has a Valid H-4 stamped till Jan 16 2017. I am planning to apply H-1 for my Spouse through an Employer this year. Is it advisable to travel to India while her H-1B is in Process? What will be the implications if she travels to India?

Answer

Watch Video: Travel while H-1 COS is pending

Video Transcipt: Whenever you are on one status and you apply for another status, like from F-1 to H-1, from H-1 to H-4 or from tourist visa to student visa, anytime you have a situation where you are going from one status to another your application with the government has two requests implicitly contained in your application. One request is find me eligible for the status I am asking for. When I go from H-4 to H-1 I tell the government (USCIS) can you please hold me to be eligible to receive H-1 and if they say yes then you go on to the next step.

Next step is actual change of status. So not only do I want to be held eligible for H-1, I want you to then change my status to H-1. So there are two applications within that one application when you file for going from one status to another. One is the determination and the other one is the change. When you travel outside USA generically speaking there can be exceptions. Generically and generally speaking your application for determination is not invalid but your change of status is invalid. So what does that do. Let's say I am on H-4 like the questionnaires wife is and they file for my H-1 change of status, I travel to India or Switzerland where ever I want to go and I come back. Government will give me my H-1 if it is approved, but they won't give me status change from H-4 to H-1. I am still on H-4, my H-1 is approved but only the determination has been issued that I am entitled to an H-1. Now I have two choices either I cannot apply for change of status from H-4 to H-1, because by traveling out I abandoned that part. I didn't abandon my determination request but I abandoned my change of status. The second option is to go to a consulate and get a visa stamping and come. So if she travels she has to do one of these two things when she comes back. She won't have to wait outside the USA if she doesn't want to. She can come back on H-4. 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Monday, January 11, 2016 - 07:23

The Proposed I-140 EAD Rule - FAQ's

Question

Answer

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

Thursday, December 10, 2015 - 15:21

Pros and cons of H-4 EAD

Question

My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD.

Answer

Video URL

 

Wednesday, December 9, 2015 - 06:12

Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

Question

1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.<br>

My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.<br>

2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B.
<br>
What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=65 

FAQ Transcript: 

This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

If PERM is filed, can she convert H-1to H-4?

She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

Wednesday, November 4, 2015 - 04:31

Withdrawing one pending petition (H-4) when another is (F-1) approved

Question

My H-4 to F-1 is approved on October 08 2015. My Spouse Employer filed H-4 extension for me which is currently in Process. We sent this H-4 withdraw letter and it has been reached USCIS (Vermont Service Center) on Oct 13th 2015. Could you please let us know approx when do USCIS withdraw this H-4 extension?. If by mistake USCIS approves this H-4 Extension, can we fight with USCIS to withdraw this H-4 extension?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/F0YZD8zWm88?t=72

FAQ Transcript:

Let's take an example of this, F-1 is approved, but H-4 extension is pending. Since you want to stay on F-1, you should write immediately to USCIS, put it in writing and make sure that you send it through something like Fed-ex or UPS or certified overnight mail, so that you can prove the delivery of the letter. That way once you have sent the letter of withdrawal out there is a very good argument that any subsequent approval of H-4 does not hurt your F-1, since you have already indicated an unambiguous intention and made a request to USCIS to revoke or withdraw an application which is currently pending but you don’t want to be acted upon.

The risk here is you got the F-1 already approved and don't want to be H-4 acted upon, because there is  something called  last action rule, which is really not a rule but merely a matter of common sense applied by the USCIS offer to the situation, that whatever status approved last would be your status. So you have F-1, H-4 going on same time, you got your F-1 approved. If your H-4 gets approved that means you are back on H-4. So at least  that is the conventional wisdom and there is some question about whether or not that is correct but nevertheless smart thing to do is if you already received  the approval that you want go ahead and revoke in writing what you don't want .  

Monday, October 26, 2015 - 05:04

Correcting dates on I-94

Question

My current visa H-4 VISA is valid till Nov 25 2016.
- I had applied for an change of status/extension of stay (I539) for H-4 status to July 4 2018 (through underlying H-1 extension).
- I had to travel to India while it was pending. USCIS issued an I-797 - Approval for the extension of stay without abandoning it.
- At the port of entry, the I-94 expiry was marked as Dec 25 2016.
- The expiry date does not jive with the original VISA expiry date Nov 25, 2016 that was presented at the time of arrival. Nor does it reflect the I-539 extended date of July 4 2018 (that was not presented at port of entry).
Please advise -
a) What action would I required to correct I-94 expiry date? Who do I contact to correct it?
b) I am filing for a I-485 adjustment as a spouse of EB-3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

Answer

Video URL

Thursday, October 22, 2015 - 04:32

Maternity leave on H-1, FMLA and status

Question

My wife is on H-1B visa and went on Maternity Leave (normal delivery) starting 8-Sep-2015 and will be completing 6 weeks of allowed vacation on 16-Oct-2015 (We have 6 Weeks letter from doctor). However, she would like to extend the leave till 15-Dec-2015 ( Total Duration 3 Months 10 Days) as we do not have the required support for the baby. Her Employer is willing to provide her with a leave/vacation letter and she can continue to work with the same employer post her vacation. Pay stubs ($0) will not be provided by the employer.<br>

Also, we are trying to have the pediatrician provide a letter suggesting 4 months of leave but not sure if we can get the same or will it be helpful?
<br>
State - New Jersey<br>
Visa Type - H-1B<br>

Question 1 - Will a $0 pay stub from employer be helpful to keep her in status while on leave?<br>
Question 2 - Will letter from pediatrician suggesting 4 months of leave be helpful to keep her in status while on leave?<br>
Question 3 - Request you to suggest if she will be in valid status if she continues to be on leave till Dec-15 and have a vacation letter from the employer without pay stubs ?<br>

We do have an option of moving her to H4 starting 30 Oct but would like to avoid the same.
<br>
If she changes her status to H-4, <br>
Question 4 - Will her current employer have to file a new H1B or a simple COS from H-4-H-1B would be required once she is ready to work?<br>
Question 5 - Can COS from H-4 to H-1B be filed in premium processing ? If not, what are the timeline for processing of the same.

Answer

 See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/ZvUVIGTM-Kk?t=2334

 

FAQ Transcript:

 If you go to this website - http://www.dol.gov/whd/fmla/&nbsp;on Family and Medical Leave Act the website explains a lot to you that you can go 12 weeks easily and USCIS will honor that and they will still consider you to be in status. So even if you don’t get paid for that time and you don’t get a pay stub that’s fine. Now if there is a medical reason for eg: a pediatrician saying she needs to have x number of months of leave. I think she will be in status. We had a case were one of our friends had to be hospitalized for extended period of time and then she was out of work on H-1 for almost a year but we were able to convert her to H-4 because the government realized she was not out of work because she didn’t have a job it was because she had a medical necessity.

As for the question if she changes her status to H4, and file premium processing, she is not subject to the quota if she changes into H-4. But the employer will have to file H-1B change of status which is almost like doing a new H-1.  Also COS from H-4 to H-1B be filed in premium processing can be done.

Monday, October 5, 2015 - 08:01

H-4 visa extension approved. Can I travel now?

Question

My H-4 visa extension has been approved, I mean the USCIS has sent me an approval notice with the I-94 record card. Now it clearly says, this is not a visa. What do I need to do in order to travel to India, do I have to go to a US consulate here, to get a visa stamped in my passport, because in order to travel through Europe we need a valid US Visa or travel through Dubai , which doesn't require any visa, and then get stamped in the US consulate while coming back? I am confused and do not know what is the next step after approval notice. By the way my spouse H-1B visa was also extended while in US by the Employer. But, my spouse hasn't gone out for visa stamping yet, will this effect my visa stamping?

Answer

When you travel abroad, in order to return to the USA, you must first obtain a visa stamp from a US consulate in (any) country that you are visiting. Check the consulate web site to make an appointment and what documents you should bring for H-4 visa stamping. H-1B visa stamp is usually not a precondition to H-4 visa. 

Wednesday, August 5, 2015 - 07:22

Applying for H-4 EAD while H-4 is pending

Question

I am on H-4 visa and my husband is on H-1 visa since 2008. We have an approved I-140 and have applied for a three year extension on the basis of approved I-140 on May 8, 2015, but we have not got any confirmation from USCIS yet, so my concern is that can I apply for a H-4 EAD before our visa extension is approved.

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.    

https://youtu.be/tSRYmjhoEzA?t=928

FAQ Transcript:
You can apply for EAD. But USCIS has said they don’t like the idea of separating the applications as it can cause delays. Personally I think that’s baloney. I would file it if I were you. You have two options. You can premium the H-1 then H-4 gets premium. Kind of piggy bank on it and when the H-1 is approved file EAD as long as you have a receipt number. I don’t see why it should be a problem. So your choice I would file it.

Wednesday, August 5, 2015 - 06:29

H-1B Employee, telecommuting/working from home

Question

I entered US on Jan 2011 on F-1 Visa, completed my Masters and am now working for a reputed US organization since May 2012(OPT start date: May 2012, H-1B start date:Oct 2012. H-1B till: Oct 2017). My work does not require me to go to office, so I work from Home. Now I am planning to visit India next year and get my Visa stamped.<br>
My Questions are<br>
1. Can telecommuting job cause any issue during Visa stamping? I heard someone was asked "if you can work from home, why can’t you work from India?” The organization I am working for has offices in India.<br>
2. Do I need any extra evidence to prove that I am telecommuting, therefore not within commuting distance from my office?<br>
3. I am married. Would you suggest going alone to India for Visa stamping and in case of rejection comeback on H-4 or will it be good to go as a family. My husband is also on H-1B

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.   

https://youtu.be/tSRYmjhoEzA?t=437 

FAQ Transcript:

1. The answer is it can. When you have a telecommuting job in most cases what we do is we actually get an LCA for that location. I think that is the proper method to do things. So make sure you have LCA for your home location. You can always come back on H-4 if the H-1 is denied and your husband does not have to go with you. It is not necessary to go as a family but the option of coming back on H-4 is always there. 

2. We always get LCA for home location. So if your employers have not obtained LCA for you I think they might need to do an H-1B amendment depending upon the facts of your case. So before you go for visa stamping it would be a good idea to discuss it with your lawyers. In my view the safest thing is to have an LCA and that location specifically approved under the H-1 process.

Tuesday, July 21, 2015 - 10:35

H-4 Visa Delay

Question

I am currently on H-1B visa and I applied for my spouse, H-4 visa (Dallas Texas service center) on They received it on March 4th and Receipt Date March 6th. Now 4.5 months completed. I heard that usually visa processing time is 3 months, but no idea what happened. Like to know what are my options available to expedite it, due to this we could not visit India.

Answer

Open a Service Request by calling USCIS customer service. By the way, you do NOT need an H-4 approval from USCIS to obtain a visa. In this respect, H-4 is different from H-1.

Tuesday, July 21, 2015 - 10:32

H-4 Visa Approval

Question

I received my H-1 approval & other documents yesterday. I am worried because the I-129 document I received yesterday states no dependents are filed with my petition (Page 4, Part 4). I had sent all my spouse details/ marriage certificate etc. while attaching supporting documents in March. What is the process for H4 visa approval as my spouse would be accompanying me.

Answer

H-4 visas do NOT require a USCIS approval for a spouse who is going to the consulate for visa stamping.

Wednesday, April 29, 2015 - 02:51

H-4 EAD - Starting business

Question

1.Can we own our business?
2. Do we have to run own payroll?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/3Heaadpk1Ik?t=933 

FAQ Transcript:

1. Yes you can.

2. You do not.

A business owner often does not get paid. Make sure you got a back up plan. If your EAD runs out for some reason and it is not renewed you should have someone run the business while you do not have an EAD. 

Thursday, April 23, 2015 - 05:13

H-4 EAD COS pending; File green card while on H-4

Question

1. Can I apply for H-4-EAD on May 26 2015 even if my H-4 COS is still pending ? Or I will have to wait till it get approved ?<br>
2. My employer already filed my PERM and they are OK to come back with them on H-4 EAD. Can I apply for I-140 after H-4 EAD is approved ?
Is it ok if I will stay on H-4 EAD to continue processing of my GC ?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/3Heaadpk1Ik?t=809

FAQ Transcript:

1. You can apply while your status is pending. but in my opinion an EAD can be applied on or after May 26th even if change of status to H-1 is pending.  

2. Yes there is no law that stops you from applying a green card. you can start your green card , continue your green card or even finalize your green card while you are on your H-4. 

Wednesday, April 1, 2015 - 05:30

H-4 EAD Rule FAQ's

Question

1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD?

2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently?

3. I am currently on OPT ( from F-1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140
Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD ?

4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140.
My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ?
5. Can H-4 EAD can do business ?
6. I am in USA on H1B and running my 5th year. but recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse?

7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back?
b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped?

8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status?
2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time)

9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying?

10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously. Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer?
b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition?
c. If YES, how long is this ‘grace period’ for OPT cap-gap extension?
- If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?

Answer

1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD?

Answer: The H-4 EAD, like the EAD under AOS/I-485 is an opportunity, not an obligation. You can choose to get get an EAD and then not work at all. The EAD remains valid.

 

2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently? 

Answer: I-539, change of status has to be filed only if the derivative spouse is in a status other than H-4. If your spouse is already in H-4 status, you will file the I-765 only. If they are in a status other than H-4, such as F-1, you will file for change of status to H-4 using I-539 and you can concurrently file the I-765.

 

3. I am currently on OPT (from -F1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140 Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD?

Answer: I think we have plenty of clarity at this time. You can apply concurrently for H-4 COS and EAD on or after 26 May. You can also apply for H-4 COS now and EAD later. 

 

4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140. My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ? 

Answer: Good points. But H-4 EAD will still be good for people with no I-140 who are in 7th plus year H-1 extension. As to whether or not this is an easy task, depends upon whether they do it by memo (real easy) or regulation (time consuming). 

 

5. Can H-4 EAD can do business ?

Answer: H-4 EAD holders CAN do business.

 

6. I am in USA on H1B and running my 5th year. But recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse? 

Answer: Since you have received extension beyond 6 years of your H-1, I see no problem in your spouse obtaining her EAD.

As to whether we can represent you, is more problematic.  Since we do not know the depth to which USCIS will examine the supporting documentation that goes with the H-4 EAD petition, we have no good way to decide what to charge. For instance, if USCIS starts asking questions about the status of H-1 holder, it could involve hours of our time.  But if they do not, it would be just a simple filing.  There is no fair method to assess the issues that can be raised.  One of the options you have is to file the Form I-765 with supporting documentation yourself, and then retain us only if an RFE is issued.  That way, in reviewing the RFE, we can assess how much work is needed and charge accordingly.

 

7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back? 

b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped? 

Answer: a. In my view it is no, she does not need to go  for visa stamping if she already has a visa. Not working after getting her  EAD is  her right. Therefore, it is not a violation of her H-4 status if she decides not to work, work part time, or own a business, etc.

b. No. She will need a visa. The H-4 EAD does not operate like an Advance Parole.

 

8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status? 

2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time)

Answer: 1. I see no issue with changing employers as long as your eligibility is otherwise maintained (status/I-140 etc.)

2. Yes you can. I have discussed this in the video on my blog.

 

9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying?

Answer: USCIS's position is that casual trips that are brief are permitted. If your husband leaves for a long time, you are not permitted to stay in the USA.

 

10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously.  Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer?

b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition?

c. If YES, how long is this ‘grace period’ for OPT cap-gap extension? If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?

Answer: a. I see no reason why you must seek the help of your wife's employers.

b. You will not get any new rights other than an H-4 EAD. 

c. A timely filed H-4 petition will give you the right to stay in the USA awaiting outcome.

Friday, February 20, 2015 - 20:22

Status of the H-4 EAD regulations

Question

Status of the H-4 EAD regulations

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=sXq6DaDK7AA#t=93

FAQ Transcript:

This FAQ is about H-1 quota, how does H-1 quota work?

I think this is an issue important for many people.

Question: I am on L-1 A, If I get H-1B this April, is it mandatory to work from October 1st. Can I continue on L-1A and then change to H-1B when I like.

Answer: It can be done, sure. Here is how you do, when you apply for H-1, don't apply for change of status, its up to you. You can tell the employer and double check it,make sure you talk to lawyers. Just say I want an H-1 approval but I don't want change of status. That way from October 1st you don't automatically get on H-1, you stay on L-1 continue working on L-1. And whenever you are ready you can go outside, get your visa stamped and come back or apply for change of status within USA to H-1, which is like doing H-1 all over again but you are not subject to the quota. So that's how you do.  

Tuesday, February 17, 2015 - 01:23

H-4 EAD Rule

Question

My spouse and I are living in different sates due to obvious work reasons. I am currently on H-1B Visa with my I-140 approved. My wife is on H-1b working as a full time employee to XYZ company. Now, with Obama's executive action particularly with H-4 EAD my wife is planning to change her visa status from H-1B to H-4 so that she can get opportunities at the place where I live (at this point of time all the companies at my place are asking her for Either Green Card or Proper Work permit without any sponsorship in order to hire her). In this regards I have 2 questions <br>
1. Would you suggest us to get H-4 approval in advance before H-4-EAD rule comes into effect or would you suggest we can file them concurrently?<br>
2. If she applies for H-4 when can she quit the job - Is it on the day of notice of application receipt from USCIS or from the day of H-4 approval?<br>

P.S: I am aware that no rule has been published yet but just wanted to get your thoughts/suggestions on this issue.

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=110

FAQ Transcript

As you folks know there is a regulation that is pending for a long time and we were expecting in December that it will get finalized, published and H-4 people whose spouses are at the I-140 stage would have the right to work with an EAD. So far that is still pending; there is no news on that. Last week USCIS said that they are very close to finalizing but knowing the government I do not know what very close means. 

There is a difference between Executive action of Obama and the pending regulation for H-1 EAD. These are two different things. Right now we are waiting for the regulation that was pending to be published.  

So the answer to the question is she can quit the job on the date USCIS receives the H-1 application. If she does the H-1 application online then she can quit the same day. I would want you to wait and see what the rule looks like before you start making changes in the work authorization. if you’re ok with the idea that your wife could end up not working at all for many months then go ahead and apply for H-1 but if you do not  want to take that chance then wait until the regulations become finalized and then you can decide how you want to go about. 

Tuesday, November 18, 2014 - 00:06

H-4 and I-140

Question

Currently I am on H-1B and my wife in H-4, my company had recently filed for Green Card. It has been 6 months since the petition has been filed. My wife has about 5 years of work experience back in India. She is interested to work here now. What are the possibilities of her getting a job here in US. As my GC is in progress, can she start looking for a job once my I-140 is approved?

Answer

Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

Thursday, October 2, 2014 - 14:02

Volunteer work on H-4 visa

Question

Hello Sir,
I am H4 visa holder and want to blog for hobby. If I get any money from blogging due to advertisements or page hits, I want to take all of that money and donate it to charitable organization. I want to know is this legal while in H4 status and if so I want to know the correct procedure to do what I have mentioned, so that I am still following the rules for the H4 visa.

Answer

See clip from video recording by Rajiv for the answer to this question regarding volunteer work on H-4 visa status.

https://www.youtube.com/watch?feature=player_detailpage&list=UUm4s1qwOS…

Thursday, August 28, 2014 - 06:39

H-4 Visa Holder Applying for Canada PR

Question

As a H-4 visa holder in the USA (my husband is on H-1B), and an Indian citizen, I plan on applying for Canadian PR via the federal skilled worker program, to eventually start working there. The question I have is if my PR does come through within a year, will my H-4 visa in the USA get affected or be void immediately? Provided I don't get a job in Canada by then, how long will my H-4 be valid after I get my PR in Canada? Can I choose to live in either country in that case?
Also, while applying for the PR, they asked for sufficient funds. Since I am a H-4 dependent, can I show my husband's funds and income as a source? Because I am not earning here, I will have to have his money transferred. Will that be a problem?

Answer

Your H-4 visa does not get affected by PR in Canada, and whether or not you stay in the USA or Canada. The visa stays valid through the date of its stamping, as long as your husband is maintaining status. US immigration laws also should not create any issues with a funds transfer, but check Canadian laws and US Tax Laws.

Your H-4 visa does not get affected by PR in Canada, and whether or not you stay in the USA or Canada. The visa stays valid through the date of its stamping, as long as your husband is maintaining status. US immigration laws also should not create any issues with a funds transfer, but check Canadian laws and US Tax Laws. - See more at: http://www.immigration.com/comment/14325#comment-14325

Wednesday, July 23, 2014 - 04:45

H-4 visa employment

Question

When do you think the H-4 regulations giving EAD will become in operation? Will they be changed or will they remain the same?

Answer

Timing is impossible to predict. It could be as early as September or so, or as late as the government wants it to be. Also, government CAN and often does change or modify regulations after comments from the public are reviewed. 

Thursday, May 22, 2014 - 06:06

H-4 for Canadian Citizen

Question

Can a Canadian citizen get H-4 stamping at the border? What is the procedure and what documents are required for the process? What are the risks involved to get H-4 at border, opposed to filing for adjustment of status?

Answer

Canadian citizens can apply for H-4 at the border. Typically, CBP would require proof of relationship like marriage cert and evidence of H-1 approval and status. In my experience, CBP does help people over the phone. Try calling the port field office, for instance, Buffalo: http://www.cbp.gov/contact/ports/field-office/buffalo

The above link can be used to locate the office that will have jurisdiction over your entry.

Thursday, January 2, 2014 - 02:53

Maternity Leave and Pay Stubs

Question

I am on H-1B & my wife also on H-1B. After three months pregnancy leave my wife is planning not to work and to transfer from H-1B to H-4. She will not have last paychecks copy for three months so will it be an issue during transfer? Will she need to start the job again to get three paychecks copy ?

Answer

Reasonable maternity leave should be considered "in status" period, so pay stubs should not be needed.

Wednesday, July 24, 2013 - 08:31

H-1 to H-4

Question

My spouse and I work for the same IT company. My spouse who is on H-1B visa is already in the US and my H-1B is under process, hoping to get it stamped latest by October 13th. I plan to quit my current job after stamping is over(may be in Oct13) and join my spouse on dependent visa (H-4).

1) When I apply for H-4, will my H-1B be valid or my company will cancel my H-1B?

2) Assuming H-1B still remains valid after my H-4, can I apply for change of status to H-1 later and search for jobs while on H-4?

3) How long does it take for change of status from H-4 to H-1?

Answer

1. H-1 cancellation (revocation) is not automatic, but the company would have to be extremely ill-informed not to revoke the H-1. They must.
2. You can revert back to H-1 from H-4. You will not be subject to quota.
3. The same time as a new H-1. Apply premium if in a hurry.

Monday, July 22, 2013 - 07:18

Status of H-4 Dependents When H-1B is Denied

Question

If my H-1B petition is denied by USCIS, or withdrawn by my employer, what happens to my H-4 dependents?

Answer

If you are no longer in valid H-1B status, your dependents’ H-4 petitions will no longer be valid either.

Tuesday, May 14, 2013 - 04:00

Applying for Spouse after H-1B Approval

Question

I am planning to come to the U.S. to work. The company that is going to file the H-1 petition for me tells me that they will not need to file any petition for my wife. I want her to accompany me to the U.S. What do we need to do?

Answer

The company will file your H-1B petition and, after you receive your H-1B approval, your wife should accompany you to the consulate to apply for her H-4 stamping in order to come with you to the U.S. as your dependent.

Friday, April 5, 2013 - 09:03

Exploring Other Options During H-1 Transition

Question

As my husband's H-1 expires, we are moving back to India around August/September. I am exploring options to quit my job (also on H1) in the last 2-3 months, but since this is a short period, I'm looking for the most convenient and economical transition. Can you please advise:
- Convert to H4: What is the expense incurred and how much in advance would I have to apply for this?
- I have a tourist visa that is valid till 2016- can I take advantage of this?
- Is there a grace period after leaving a job here (giving up your H1) that I can take advantage of if I time it properly?

Answer

You will need to figure out the filing fees for Form I-539 (used for H-4). You can convert to tourist visa (status) if you leave USA and reenter using the tourist visa. To let you back in or not would be at the discretion of the CBP officer who interviews you. There is no grace period under these circumstances.

Friday, March 22, 2013 - 03:05

Applying H-4 Visa for Spouse During H-1 Processing

Question

My company is processing my H-1B application. Is there any information regarding dependents that will be accompanying H-1B applicant to US at the of filing petition ? What is the process to apply for dependent visa (H-4) for my spouse?

Answer

If you are outside USA, only H-1 is processed here. H-4 is done at the consulate when you go apply for H-1 visa.

Thursday, February 14, 2013 - 09:09

Last Name Change for H-4 Visa

Question

My passport is getting expired shortly and I need to renew it as my visa has the maiden name. I wish to change the last name in visa. What is the procedure to change the last name?

Answer

As far as I know, you will have to apply for a visa again. To change the name on a U.S. visa that has already been issued requires a new application. But if you carry your old passport (which has the old visa), with the new passport and your marriage certificate, you should be allowed entry. I think you should reapply on the new passport. 

Friday, February 1, 2013 - 11:16

SSN for Non-working Purposes

Question

I am on H-1B visa and my wife just received her H-4B. She is not allowed to get SSN as this is only for people who allowed to work. I need to get her TIN (TAX Identification Number) but not sure where to start as I have been told she needs TIN for Driver licensing and open Bank account.

Answer

You contact IRS for tax identification. Also, SSN can be given for non-work purposes if the law requires you to provide a non-work Social Security number to get a federal benefit or state general assistance benefit that you are otherwise qualified for.


See this info TIN: http://www.irs.gov/Individuals/International-Taxpayers/Taxpayer-Identification-Numbers-(TIN)


This for SSN: http://ssa-custhelp.ssa

Wednesday, January 23, 2013 - 02:20

H-4 Dependent Visa

Question

Is it possible for an H-1B holder to apply for H-4 dependent visas for a fiancée and/or parents?

Answer

For an H-4 dependent visa, qualifying family members include only the spouse and unmarried children under 21 years old.

Wednesday, December 19, 2012 - 03:06

H-4 to H-1 status

Question

I was in H-1B status for three years, then changed to H-4 status. If I want to change back to H-1, will I need to wait to file under the new quota?

Answer

If your previous H-1B petition was counted against the cap, you should not be subject to the quota and should be able to file an H-1B petition at any time. However, if your prior H-1B employer was cap-exempt, you will be subject to the quota.

Wednesday, November 28, 2012 - 06:31

Adjustment of Status from H-4 to H-1

Question

I may be travelling US on H-1B next year with my spouse on H-4. Is there any possibility to find a job in US for my husband through H-1B sponsor by some consultants and how much risk is involved in this?

Answer

As long as there is quota remaining on the H-1B, the law permits change of status from H-4 to H-1. And, if the H-1 is denied, that does not affect the existing H-4. So, no legal risk that I can see.

Monday, November 19, 2012 - 10:40

Electronic Immigration System Eligibility

Question

Can I use ELIS (Electronic Immigration System) to file an extension of status for my H-4 dependents?

Answer

Please refer to the following for classifications that are eligible to use ELIS: http://www.uscis.gov/uscis-elis

Wednesday, September 12, 2012 - 01:45

H-4 TO H-1B

Question

I have H-1B visa and my husband has H-4 visa. If my husband is going to file H-1B from US, will it be a COS. If so, is there a timeline before he has to come to India to get his Visa stamped? I heard many H-4 to H-1B petitions are getting denied. Is that true?

Answer

It can be a COS. If a successful COS is obtained, there is no deadline on getting a visa stamp. H-1 petition denial rate is higher if the documentation is insufficient.

Thursday, May 10, 2012 - 05:28

F-2 to H-4 Visa

Question

I am on F-2 visa and it is valid up to 1 July 2012. My wife already filed H-1B in Apr 1st week.I am also planning to file my H-1B. So can I directly apply H-1B or fist apply H-4 and then after apply H-1B. How will it work?

Answer

If you are subject to H-1 quota, to get status within USA, you must maintain status till September 30. So, it appears you may have to apply for H-4 as well as H-1. Your lawyers can help you figure out the timing. Applying for H-4 now should not be an issue. But move quickly. You can file for H-4 online. Fairly easy.

Tuesday, December 20, 2011 - 22:21

H-4 extension for spouse and child

Question

We had applied for H-4 extension for my wife and child (1 year) in same I-539 form. We received an approved 797 form for dependents. Applicant's name is my wife's name and beneficiary's name is my daughter’s name. The I-94 in the form contains only my daughter’s number and not my wife's I-94 number. My wife's name is mentioned as a petitioner. Should my wife also have a separate I-94 in the approved 797 form?

Answer

She must have a separate I-94.

Tuesday, July 5, 2011 - 05:20

H-1B to B-2

Question

I am working in USA on my H-1B right now and my wife is on H-4B. My H1 is valid until 2013. I am planning to leave my job within next few months. After that, we want to visit entire USA for few months before I go back home. Can I change from H-1B(for myself)+ H-4B(for my wife)or B-2 Visitor for both?

Answer

You can and should apply for B2 for both.

Friday, July 1, 2011 - 04:34

Can I apply for H4 visa for spouse while on EAD?

Question

My I -485 is pending since 2007, on EB3. My I-140 approved in Nov 2007. I did not for I-485 for my spouse and dependents as they were not in USA. I am working on EAD and I do not have H1B. My Question is can I apply for H4 visa for my spouse, as I am legally working on EAD? I heard that people on student visa can bring their spouse on dependent visa.

Answer

You can have them apply for H-4 only if you go to an H-1 (you can). An F-1 is difficult if you have an AOS pending.

Thursday, May 19, 2011 - 00:05

H-4 Visa and Status Validity

Question

My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012

My questions :
1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ?
2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?

Answer

Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

Monday, April 18, 2011 - 15:48

OPT - H4 - H1

Question

I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions:
1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4?
2) How difficult it is for an employer file for H1 from H1 and what is the process?
3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?

Answer

1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
2. No different than filing a new H-1.
3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.


 

Wednesday, March 16, 2011 - 04:17

COS from H-4 to F-1 visa

Question

I want to change my status from H4 to F1 and assuming that it would take approx 3-4 months. If I apply for COS today, I make a trip to France (I am French citizen) next week, can I re-enter US on my valid H4 visa? Or do I have to wait until F1 is approved, get it stamped in Paris and then re-enter US?

Answer

You do NOT need USCIS approval to apply for F-1 visa. Just apply for F-1 visa during your visit to France. Ask the school to explain the formalities to you. By the way, if you leave USA during a COS request, the COS is deemed abandoned.


 

Friday, January 28, 2011 - 02:57

H-4 Visa Stay in US

Question

My husband is on H4 with an I94 valid till June 17, 2011 and I am a H1B visa holder with a valid petition document. I am planning to go for a vacation. Will it be a problem if I leave my husband (dependent) in US and go for a vacation and come back in 3 to 4 weeks?

Answer

A few weeks absence should create no problems for your dependents.

Tuesday, January 11, 2011 - 06:03

H-4 rejected under 214(b)

Question

My wife's H-4 got rejected under section 214(b) recently and interview went for less than minute. Should I apply again ?

Answer

In my view, H-4 cannot be denied under Section 214(b). This is an error. Apply again.

Tuesday, December 7, 2010 - 02:38

Advance Parole

Question

Right now my wife and I am on advance parole, In 2005 what happened was, when my H-1 and my wife’s H-4 came to renew ,the attorney forgot to renew my wife’s H-4 so she was out of status for about two months later he filed it everything was alright.So my question is can she go to India with advance parole and come back, will there be any problem?

Answer

If her I-485 was pending, she would not be out of status.

Thursday, September 16, 2010 - 04:42

H-4 visa and age

Question

I am currently on H-4 (my visa expires 31st sept, 2010). I am 23 yrs old. I understand that the laws states that over 21 you are no longer on H4 visa. But in my case the immigration has issued me the visa for the date mentioned above. How do I go about ?

Answer

The general rule is - we should not try to take advantage of an error made by the govt.

Sunday, August 29, 2010 - 22:52

H4

Question

Just would like to know that how soon can a spouse and children apply for a H4?

Answer

There is no time limit. As soon as you get an H-1.

Tuesday, August 3, 2010 - 08:59

H4 Visa Stamping

Question

I recently switched jobs and had my H1-B transferred from Company A to Company B. I have all the H1-B sponsorship documents in place from Company B.
I am married and my wife is on H4 visa. My wife is currently in India and she has a valid visa and I-94 based on my Company A H1. My wife’s visa and I-94 are valid thru Sept. 30, 2010.
My question is, although I have the all the approved papers for my wife’s new H4 visa based on Company B, instead of having her go for a re-stamping can she fly back on her old but valid visa and I-94?

Answer

She should be able to enter with her existing H-4 visa as long as she enters USA before the visa expires. But note that her H-4 I-94 given upon entry would be valid only till the visa stamp validity, so you may have to eventually get the visa restamped, or PERHAPS get the H-4 extended again.

Monday, June 7, 2010 - 07:21

H-4 visa to H-1B

Question

My Wife is on H4 visa.How can she convert her status to H1B Visa.What are the various ways out to attain work visa.

Answer

She can. For Indian citizens, H-1 and L-1 are two obvious choices.

Friday, April 16, 2010 - 07:18

Travel during H4 processing

Question

I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

Answer

If you travel during change of status, the request for COS is deemed to be abandoned.

Tuesday, January 26, 2010 - 05:03

H1B-H4-H1B

Question

Recently (2009), I changed my status from H1B to H4. My Employer cancelled the H1B after I changed the status to H4 Visa. I have H1B petition document(I-797) with me.

1)Now Can I use existing H1B with the new employer?
2)Do I fall under quota or I need to file new H1B in this Year quota?

Answer

You will be exempt from the quota (assuming your previous employer was a private employer - NOT exempt from quota). The new employer will need to apply for an H-1 again.

Thursday, January 21, 2010 - 07:07

H4 to H1-B

Question

I was working as an IT professional and my H1-B visa expired on 13 december 2008 (I shifted to H4). I have been in this country for 10 years now and there are other factors involved too. Is there some way I can reactivate my H1-B visa status?

Answer

Once 6 years on H-1 are over, I know of only two ways to reactivate: go physically outside USA for one year, OR apply for a green card, one year after which you can extend your H-1 (or upon approval of I-140, whichever is earlier).

Thursday, November 26, 2009 - 04:58

H4 to H-1

Question

I came on H4, got H1b, worked for few months, again changed to H4.Could somebody tell me how much would it cost to amend from H4 to H1.

Answer

I am not sure what you mean by "cost," but I can refer you to what we charge. See if this answers your question: http://www.immigration.com/services-fees/h-visa/h-visa-services-and-fees

Friday, April 3, 2009 - 01:00

Are H-1 holders being turned back at the airport?

Question

This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting.

A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD.

While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES!

Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

Answer

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.