H1B to H4 quesiton

[alexg82]

Hello everyone, first of all want to thank everyone here as it is a great source of info and has been very helpful to me.
My current situation is as follows:

Both me and my wife are from Argentina, both on H1B currently. My wife is about to resign and the most probably will travel to Argentina to get her H4 there and come back. We wanted to know what happened to her current H1B. Does is stay passive? If in 2 months a company would like to hire her, do they have to do a new H1B against the quota or can they restart the current H1B by doing a COS or transfer?

Another option is doing the COS directly as we are both in the US, but because of travel we believe the best situation would be to go back to Argentina and have the H4 stamped quickly there and return to the US and have no issues with travel as she already has the visa stamping.

I appreciate any comments and suggestions!! Our main concern is what happens if she gets a new job in the first scenario.

Thanks!!

Alex

[EB2IndSep09]

Alex,

Need to know few key points missing in the details provided.
Is she going to come back and join the same employer who is currently holding her H1B? How long is her H1B Valid is it going to be valid even after she is back?
Main question is why is she resigning her job? Do not think so she is going to resign only to get her H4 visa stamped.. is the employer not required of her services anymore? if it is the case the employer would revoke her H1B once she resigns. Also if it is inevitable it would be a good idea to stick around for next 3 months get into H4 as soon as she quits her H1 get a EAD if you have a I140 approved.

[alexg82]

Thanks for the reply, here is more info:
She wouldn't be joining her past employer.
Her H1B should be valid for around 1y6m more still.
She is resigning because the company current situation is not a good one and she is not happy there anymore. They actually love her, so I doubt they would revoke it.

I will have mi I140 approved around the date the H4 to EAD starts applying (May 26th if I'm not mistaken), so probably this will be a non issue around that time frame, but just wanted to check if a new employer could file agains the previous H1B or would need to go through the cap!

Thanks again

[Kanmani]

Alex,

Company B can start a new H1B right away, since your wife already possess one within the last 6 years span.

If the trip to Argentina is only for the purpose of H-4 stamping, a change of status from H1 to H4 would reduce your expenses.

[alexg82]

Thanks Kanmani. Great info!

The trip is only for the H4, but would allow her to travel and get back to the US. If we do the COS if she leaves she would need to do the stamping anyway and we have a family trip in May, which would mean she would need to do the stamping to get back in the US at that point and would be complicated.

Thanks again

[qesehmk]

Thanks Kanmani. Great info!

The trip is only for the H4, but would allow her to travel and get back to the US. If we do the COS if she leaves she would need to do the stamping anyway and we have a family trip in May, which would mean she would need to do the stamping to get back in the US at that point and would be complicated.

Thanks again

If I were in your situation - I would've gone and come back using H1 and then on return simply did a COS in US thereby saving stamping expense in Argentina.

Her H1 stays good until it expires unless the employer cancels the H1 which they generally have no incentive to do. You can recapture any H1 not used.

p.s. - Welcome to the forum Alex.

[alexg82]

Thanks everyone for the responses!! Really appreciate it!!!