H1B to H4 conversion while out of country.

[flexan]

Hello Gurus,

My wife is in this weird situation and wanted to get your opinion on this matter. She was working on H1-B and due to mass layoffs at work, she had to change her status from H1B - H4. We applied for change of status (I-539) with USCIS and the application was received just on the last day of her H1B termination date. So I think we are ok there.

Now while this application was still pending, she had to travel out of country truly not knowing the impact on the application. At later point I received a notice from USCIS indicating that her change of status request was denied since she was not physically present in the country while the application is being processed. It further said -

"A change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed"

Our attorney indicated that she has to go to an embassy to get her H4 visa stamped before she can enter back to US.

Now the question is, will the I-539 denial be of any concern on her ability to obtain the H4 visa?

Any other concerns that she need to be aware of before attending her H4 visa interview?

Thanks

[Spectator]

flexan,

That should not be an issue at all.

USCIS must deny the COS request if the person departs the USA. COS is a request to change status within the USA.

The person gives up any status they held when they depart the USA, so the COS request has no meaning (they have no status to change from).

To return to the USA, they would need a visa anyway. Presenting the visa will admit them into the USA in that status, negating the need for COS.

[qesehmk]

flexan - agree w spec here. only thing i will add is if the ground for denial was only the fact that she was out of US then i don't see any reason for worry in stamping H4.
Hello Gurus,

My wife is in this weird situation and wanted to get your opinion on this matter. She was working on H1-B and due to mass layoffs at work, she had to change her status from H1B - H4. We applied for change of status (I-539) with USCIS and the application was received just on the last day of her H1B termination date. So I think we are ok there.

Now while this application was still pending, she had to travel out of country truly not knowing the impact on the application. At later point I received a notice from USCIS indicating that her change of status request was denied since she was not physically present in the country while the application is being processed. It further said -

"A change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed"

Our attorney indicated that she has to go to an embassy to get her H4 visa stamped before she can enter back to US.

Now the question is, will the I-539 denial be of any concern on her ability to obtain the H4 visa?

Any other concerns that she need to be aware of before attending her H4 visa interview?

Thanks

[flexan]

Thanks a lot Q and Spec for your timely response as usual. This has given me some relief now.