H1 Related Question

[tatikonda]

Hi Q and Other Gurus,

please move to other forum, as it may not be related to predictions.
One of my cousin in on H1 in US, His wife is working in India and applied H1 this year.
Question is, can she come to US on her existing H4 Visa and start working in Oct 2014.
is it possible ? please let me know.

Regards
Tatikonda

[Spectator]

Hi Q and Other Gurus,

please move to other forum, as it may not be related to predictions.
One of my cousin in on H1 in US, His wife is working in India and applied H1 this year.
Question is, can she come to US on her existing H4 Visa and start working in Oct 2014.
is it possible ? please let me know.

Regards
TatikondaIt would be fact specific, but I am going to assume (since she is working in India) that the H1B was approved with Consular Processing.

In that case, there are 3 ways to get to H1B status that I can think of.

a) Get the H1B stamping and wait to be admitted to the USA within 10 days of October 1, 2014 in H1B status.

b) Get the H1B stamping, be admitted in H4 status, then within 10 days of October 1, 2014 exit the USA (could be Canada or Mexico) and be readmitted in H1B status.

Both those options would allow her to work from October 1, 2014.

c) Be admitted to the USA in H4 status, then submit a COS from H4 to H1B application (which I think is essentially a new H1B application - not entirely sure). Messy, expensive and cannot work until the COS is approved.

Getting the visas stamping gives far more flexibility and the ability to travel freely in the future.

I am sure others may have views and experience on the subject - I don't.

[qesehmk]

Tatikonda - Her H4 and her H1 are two different things. She can very well use her H4 to enter US and then simply use her H1 when the validity of H1 starts.

What we get in our passport called "H1 Visa" is just a Visa to enter US. What gives a person right to work in US is the underlying H1 approval.

So she can enter US on any valid visa and then start working on H1 whenever her H1 approval duration begins.

The only thing I am not sure is whether she needs to file an explicit change of status or COS from H4 (or whatever other status she may have) to H1.

[Spectator]

Tatikonda - Her H4 and her H1 are two different things. She can very well use her H4 to enter US and then simply use her H1 when the validity of H1 starts.

What we get in our passport called "H1 Visa" is just a Visa to enter US. What gives a person right to work in US is the underlying H1 approval.

So she can enter US on any valid visa and then start working on H1 whenever her H1 approval duration begins.

The only thing I am not sure is whether she needs to file an explicit change of status or COS from H4 (or whatever other status she may have) to H1.Q,

I would change that to:

What gives a person right to work in US is their status (if that includes incident Employment Authorization). To qualify for H1B status, they must have an underlying valid H1B petition approval.

The visa is only paperwork to make a request at POE to be admitted to the USA in a particular status, be it B2, H4, H1B or any other. It's quite possible to have multiple different visas at the same time - the person then has to choose which one to present according to the status they wish to be admitted in.

The fact that a person may have an H1B approval is meaningless unless they are in H1B status.

If the person is admitted in H4 status (by using their H4 visa), then they must do something to change that status to H1B before they can work.

A person can only be admitted to the USA in initial H1B status (i.e. using an H1B visa) up to 10 days before the petition approval start date and may not work until that time.

An H1B petition approved with a COS request is a different matter, but that would have required the person to be in the USA in legal status at the time the H1B was applied for (which doesn't appear to be the case). In addition, they would have had to have remained in the USA until the H1B with COS was approved, since leaving the USA while a COS request is pending automatically cancels the COS request.

If they departed the USA after the COS approval and returned before October 1, 2014 (in say H4 status), the last action would be the approved COS to H1B taking effect on October 1, 2014. No further action would be required.

This does not appear to be the situation described by the OP.

My 2c.

[tatikonda]

Thank You Spec and Q for your replies... ,

Let me elaborate the situation, my cousin is in US now and his wife is working in TCS in India.
She is having valid H4 visa and visited US several times.. Now, this year applied H1 Visa (Normal processing with my employer) and luckily got selected in lottery.
I am assuming that, when her H1 is approved, she will not have I-94 # below the H1 Approval notice. ( I guess they will provide I-94 # for people applying COS .i.e H4-H1 or F1-F4. Etc..).. We wanted to avoid H1 Stamping in India due to high rejection rate .. Plan is that she arrives US on H4 in either Aug/Sept (After H1b Approval.. do not want to resign TSC before H1B approval) then start working when H1 begins .. However, I am wondering that, she will be provided I-94 # with H4 Class which is valid until July 2015...

Here Question is..
1) what will be her status on Oct 1st 2014.
2) As she entered on H4, Do we need to apply for COS ? or From Oct 2014, her H1 Status will kick off automatically ??
3) As I-94 provided will be only valid until her present H4 valid, Which is July 2015.. should she do anything in July 2015..

I think I-94 # is key in knowing the person status .. please suggest ..

Appreciate your efforts.




Q,

I would change that to:

What gives a person right to work in US is their status (if that includes incident Employment Authorization). To qualify for H1B status, they must have an underlying valid H1B petition approval.

The visa is only paperwork to make a request at POE to be admitted to the USA in a particular status, be it B2, H4, H1B or any other. It's quite possible to have multiple different visas at the same time - the person then has to choose which one to present according to the status they wish to be admitted in.

The fact that a person may have an H1B approval is meaningless unless they are in H1B status.

If the person is admitted in H4 status (by using their H4 visa), then they must do something to change that status to H1B before they can work.

A person can only be admitted to the USA in initial H1B status (i.e. using an H1B visa) up to 10 days before the petition approval start date and may not work until that time.

An H1B petition approved with a COS request is a different matter, but that would have required the person to be in the USA in legal status at the time the H1B was applied for (which doesn't appear to be the case). In addition, they would have had to have remained in the USA until the H1B with COS was approved, since leaving the USA while a COS request is pending automatically cancels the COS request.

If they departed the USA after the COS approval and returned before October 1, 2014 (in say H4 status), the last action would be the approved COS to H1B taking effect on October 1, 2014. No further action would be required.

This does not appear to be the situation described by the OP.

My 2c.

[qesehmk]

Spec - yes indeed that's why I said that I was not sure whether she will have to file an explicit COS. Looks like she will have to file an explicit COS once she is in US on H4.

[Spectator]

Thank You Spec and Q for your replies... ,

Let me elaborate the situation, my cousin is in US now and his wife is working in TCS in India.
She is having valid H4 visa and visited US several times.. Now, this year applied H1 Visa (Normal processing with my employer) and luckily got selected in lottery.

Thanks for the clarification. The H1B approval will be with Consular Processing and not with COS.


I am assuming that, when her H1 is approved, she will not have I-94 # below the H1 Approval notice. ( I guess they will provide I-94 # for people applying COS .i.e H4-H1 or F1-F4. Etc..)..

Correct.


We wanted to avoid H1 Stamping in India due to high rejection rate .. Plan is that she arrives US on H4 in either Aug/Sept (After H1b Approval.. do not want to resign TSC before H1B approval) then start working when H1 begins ..Personally, I think it is a mistake not to get the visa. If the paperwork is in order, there should be no problems. The visa can be applied for well in advance to allow for processing delays.

A COS invites further scrutiny from USCIS anyway. I'm aware of the reputation Indian Consulates have for 221g, but generally only those that have problems mention it in forums like Trackitt. The hundreds and thousands who don't have any problem, generally do not.


However, I am wondering that, she will be provided I-94 # with H4 Class which is valid until July 2015...

That is exactly what will happen. She can't be provided with one for H1B because she won't have the appropriate visa. If she arrives in the USA more than 10 days before October 1, she can't be admitted in H1B status anyway, even if she has the visa.


Here Question is..
1) what will be her status on Oct 1st 2014.

If she does nothing, she will continue to be in H4 status and will not be able to work.


2) As she entered on H4, Do we need to apply for COS ? or From Oct 2014, her H1 Status will kick off automatically ??

Her status will not automatically change to H1B on October 1, 2014 because no COS has been requested or approved. To change status, a COS request needs to be made, which to H1B is (I believe) essentially an H1B amendment with a COS request (I could not find any evidence that it is a simple COS request using an I-539, but I readily admit that I am not familiar with the process). There is no guarantee the COS request will be approved in time to start work in October, unless it is applied under Premium Processing. Is the H1B employer prepared for all this extra expense?


3) As I-94 provided will be only valid until her present H4 valid, Which is July 2015.. should she do anything in July 2015.

If she were still in H4 status at that time, it would need to be extended, presumably together with the husband's H1B.


I think I-94 # is key in knowing the person status .. please suggest ..

Correct. No H1B I-94 = no H1B status = not authorized to work for the H1B employer.

I would suggest a consultation with an Immigration Attorney might be in order.

[Kanmani]

Great explanation Spec.

[Spectator]

Kanmani,

I'd hoped you would read the thread.

Your comments gives me some reassurance that I am at least on the right track.

If you have more detail about the process for an H4 to H1B COS under these circumstances, I'm sure everybody would welcome the contribution. My search skills did not yield conclusive results that I could totally rely on.

[tatikonda]

Thank you Spec, Great explanation..
I owe you guys.. I believe, It would have costed me couple hundred dollars to get this information from immigration lawyers..
I want to give a humble contribution to this forum, please suggest, how can I do.

Regards
Tatikonda.



Thanks for the clarification. The H1B approval will be with Consular Processing and not with COS.



Correct.

Personally, I think it is a mistake not to get the visa. If the paperwork is in order, there should be no problems. The visa can be applied for well in advance to allow for processing delays.

A COS invites further scrutiny from USCIS anyway. I'm aware of the reputation Indian Consulates have for 221g, but generally only those that have problems mention it in forums like Trackitt. The hundreds and thousands who don't have any problem, generally do not.



That is exactly what will happen. She can't be provided with one for H1B because she won't have the appropriate visa. If she arrives in the USA more than 10 days before October 1, she can't be admitted in H1B status anyway, even if she has the visa.



If she does nothing, she will continue to be in H4 status and will not be able to work.



Her status will not automatically change to H1B on October 1, 2014 because no COS has been requested or approved. To change status, a COS request needs to be made, which to H1B is (I believe) essentially an H1B amendment with a COS request (I could not find any evidence that it is a simple COS request using an I-539, but I readily admit that I am not familiar with the process). There is no guarantee the COS request will be approved in time to start work in October, unless it is applied under Premium Processing. Is the H1B employer prepared for all this extra expense?



If she were still in H4 status at that time, it would need to be extended, presumably together with the husband's H1B.



Correct. No H1B I-94 = no H1B status = not authorized to work for the H1B employer.

I would suggest a consultation with an Immigration Attorney might be in order.

[qesehmk]

tatikonda - thank you for your kindness. Although privately owned - we have always run this as a public forum for and by immigrants. So as long as we all can help each other informally that itself is quite useful.

Financially the forum is self-sustaining thanks to the ads. If you insist on donating some money - I would suggest (but in no way would insist) that you donate to one of the organizations we have previously donated. The list can be found HERE. (http://www.qesehmk.org/forums/showthread.php/90-Account-of-Donations-We-Made/page3)

Thanks again for your kindness and you are free to do what you want to do.


Thank you Spec, Great explanation..
I owe you guys.. I believe, It would have costed me couple hundred dollars to get this information from immigration lawyers..
I want to give a humble contribution to this forum, please suggest, how can I do.

Regards
Tatikonda.

[Kanmani]

Kanmani,

I'd hoped you would read the thread.

Your comments gives me some reassurance that I am at least on the right track.

If you have more detail about the process for an H4 to H1B COS under these circumstances, I'm sure everybody would welcome the contribution. My search skills did not yield conclusive results that I could totally rely on.

Spec,

Whenever I read posts, I always look for missed out information/ Mistakes (:)). You are the one among few, who would make me go empty hand. Yesterday, I wanted to add something to the post chain, but your post carried everything resulted in my comment.

Tatikonda,

Your friend's wife can either opt for
1. H1b stamping
2. H4 to H1b CoS

Option 1 has more benefits like cost effective, visa stamp validation for 3 years . She can get H1b stamped well in advance and enter USA as H-4 dependent spend 5 months, travel back and re-enter using H1b stamp to get new I-94 and to validate the H1b approval . As Spec said she cannot automatically attain the H1b status after entering with H-4 status.

[qesehmk]

Kanmani how is stamping cost effective? COS costs 325 whereas stamping is 400-500 dollars - not including ticket to India.

Reference - http://www.uscis.gov/i-129

p.s. Check the language

Petitioners may also use this form to request an extension of stay in or change of status to E-1, E-2, E-3, H-1B1 or TN, or one of the above classifications for an alien.




Option 1 has more benefits like cost effective, visa stamp validation for 3 years . She can get H1b stamped well in advance and enter USA as H-4 dependent spend 5 months, travel back and re-enter using H1b stamp to get new I-94 and to validate the H1b approval . As Spec said she cannot automatically attain the H1b status after entering with H-4 status.

[Kanmani]

Kanmani how is stamping cost effective? COS costs 325 whereas stamping is 400-500 dollars - not including ticket to India.

Reference - http://www.uscis.gov/i-129

p.s. Check the language

Q,

An employer must file form I-129 to request an extension/change to H status for an employee or prospective employee. Dependents of such employees must file form I-539 to change or extend status.

In this case H4 to H1b requires Form I-129, any Employer filing Form I-129, Petition for a Nonimmigrant Worker, must pay $325.

Employers must also pay a $1500 ($2000 if the Employer is H1b dependent or $750 for employers with 25 employees or less ) “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee.

Employers are also required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee, seeking approval for a foreign worker already in H-1B nonimmigrant status to change employers, including petitions requesting new concurrent employment.

So, the official minimum for COS is $2325 + Attorney Fees. But Stamping fees is just $190 + ticket $1100 (min).

http://chennai.usconsulate.gov/consular-fees.html

http://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker

[qesehmk]

Thanks Kanmani.

I would've thought that all those other fees were already paid for first petition and so the second time it is just the form fees $325 - if that.

Do you really think the employer is paying all these fees again?

p.s. - Touche on the stamping fees. The fees must have come down. I remember to have paid $500 or so at mumbai consulate in 2008.



Q,

An employer must file form I-129 to request an extension/change to H status for an employee or prospective employee. Dependents of such employees must file form I-539 to change or extend status.

In this case H4 to H1b requires Form I-129, any Employer filing Form I-129, Petition for a Nonimmigrant Worker, must pay $325.

Employers must also pay a $1500 ($2000 if the Employer is H1b dependent or $750 for employers with 25 employees or less ) “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee.

Employers are also required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee, seeking approval for a foreign worker already in H-1B nonimmigrant status to change employers, including petitions requesting new concurrent employment.

So, the official minimum for COS is $2325 + Attorney Fees. But Stamping fees is just $190 + ticket $1100 (min).

http://chennai.usconsulate.gov/consular-fees.html

http://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker

[Kanmani]

Thanks Kanmani.

I would've thought that all those other fees were already paid for first petition and so the second time it is just the form fees $325 - if that.

Do you really think the employer is paying all these fees again?

p.s. - Touche on the stamping fees. The fees must have come down. I remember to have paid $500 or so at mumbai consulate in 2008.

Employer must pay for cos onS related expe
enses , l don't think that is going to happen. Q, l remember paying Inr 5000 inr in 2007 my guess is that you could have paid as a family ,as it is done so as 1 fee .

[qesehmk]

Not sure I understand Kanmani! What do you mean?

As per my experience - I am pretty sure I paid only for myself. Perhaps it included some other fees. May be agent. My employer was gracious in terms of fees for GC processing. So I never bothered what they were.


Employer must pay for cos onS related expe
enses , l don't think that is going to happen.

[Kanmani]

Not sure I understand Kanmani! What do you mean?

As per my experience - I am pretty sure I paid only for myself. Perhaps it included some other fees. May be agent. My employer was gracious in terms of fees for GC processing. So I never bothered what they were.
sorry away from laptp. phone browser is not supporting me. i mean to say employer must cover allh1b related expenses by law. In this particular case opting cos might cause double epsenses to the sponsor.

[qesehmk]

sorry away from laptp. phone browser is not supporting me. i mean to say employer must cover allh1b related expenses by law. In this particular case opting cos might cause double epsenses to the sponsor.
Yeah that's what I am not so sure about. Perhaps a good question to ask a lawyer whether all the fees will have to be paid again.

[tatikonda]

Kanmani, Q, Spec and Others,

Kanmani, I guess you are suggesting that we should apply I-539 with I-129,
I don't think, we need to apply for i-129, as I already have approved H1-B.
Please note in section 9, it says that .." we can apply with " ..approval notice
showing that he or she has already been granted status to the period requested on your application"

Please suggest ...



9.
Dependents of an H, Temporary Worker
If you are filing for an extension/change of status as the
dependent of an employee who is an H temporary worker,
this application must be submitted with:
A. Form I-129 filed for that employee or a copy of the
filing receipt noting that the petition is pending with
USCIS; or
B. A copy of the employee's Form I-94 or approval notice
showing that he or she has already been granted status
to the period requested on your application; and

http://www.uscis.gov/sites/default/files/files/form/i-539instr.pdf





Q,

An employer must file form I-129 to request an extension/change to H status for an employee or prospective employee. Dependents of such employees must file form I-539 to change or extend status.

In this case H4 to H1b requires Form I-129, any Employer filing Form I-129, Petition for a Nonimmigrant Worker, must pay $325.

Employers must also pay a $1500 ($2000 if the Employer is H1b dependent or $750 for employers with 25 employees or less ) “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee.

Employers are also required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee, seeking approval for a foreign worker already in H-1B nonimmigrant status to change employers, including petitions requesting new concurrent employment.

So, the official minimum for COS is $2325 + Attorney Fees. But Stamping fees is just $190 + ticket $1100 (min).

http://chennai.usconsulate.gov/consular-fees.html

http://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker

[Spectator]

Kanmani, Q, Spec and Others,

Kanmani, I guess you are suggesting that we should apply I-539 with I-129,
I don't think, we need to apply for i-129, as I already have approved H1-B.
Please note in section 9, it says that .." we can apply with " ..approval notice
showing that he or she has already been granted status to the period requested on your application"

Please suggest ...


9. Dependents of an H, Temporary Worker
If you are filing for an extension/change of status as the
dependent of an employee who is an H temporary worker,
this application must be submitted with:
A. Form I-129 filed for that employee or a copy of the
filing receipt noting that the petition is pending with
USCIS; or
B. A copy of the employee's Form I-94 or approval notice
showing that he or she has already been granted status
to the period requested on your application; and

http://www.uscis.gov/sites/default/files/files/form/i-539instr.pdftatikonda,


9. Dependents of an H, Temporary Worker

If you are filing for an extension/change of status as the dependent of an employee who is an H temporary worker, .....

The person is not filing for a COS as the Dependent of an H1B to extend their H4 status or to change their status to H4, which is the part of the I-539 you are quoting is referring to.

For a COS to H1B from another status, an I-129 is required. There is no filing of the I-539 because it is not applicable to a COS to H1B.


I-129, Petition for a Nonimmigrant Worker
.....

Purpose of Form

For petitioners filing on behalf of an alien to come to the United States temporarily to perform services or labor, or to receive training, as an H-1B, H-1C, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker. Petitioners may also use this form to request an extension of stay in or change of status to E-1, E-2, E-3, H-1B1 or TN, or one of the above classifications for an alien.
http://www.uscis.gov/i-129

[qesehmk]

Kanmani, Q, Spec and Others,

Kanmani, I guess you are suggesting that we should apply I-539 with I-129,
I don't think, we need to apply for i-129, as I already have approved H1-B.
Please note in section 9, it says that .." we can apply with " ..approval notice
showing that he or she has already been granted status to the period requested on your application"

Please suggest ...



http://www.uscis.gov/sites/default/files/files/form/i-539instr.pdf
tatikonda - the last I read these things a few days back - I believe I-129 has to be refiled. Where Kanmani and I were having a little side discussion was what does refiling I-129 means for an already approved I-129. Does it mean that the employer has to only pay for the I-129 processing fees of $325 and no other fees?

My guess is that yes indeed - this should be a simple COS and only 325 should be due. But I think this is an excellent question for a law practitioner. Everybody else here (me Spec or Kanmani) are only average joe's and not really lawyers. So it is worthwhile to go to a lawyer now.

[tatikonda]

Thank You Spec/Q, I am going to talk with attorney .. will update forum ..

Regards
Tatikonda


tatikonda - the last I read these things a few days back - I believe I-129 has to be refiled. Where Kanmani and I were having a little side discussion was what does refiling I-129 means for an already approved I-129. Does it mean that the employer has to only pay for the I-129 processing fees of $325 and no other fees?

My guess is that yes indeed - this should be a simple COS and only 325 should be due. But I think this is an excellent question for a law practitioner. Everybody else here (me Spec or Kanmani) are only average joe's and not really lawyers. So it is worthwhile to go to a lawyer now.