Can I travel back while I am on H4 to H1 COS?

USA H1B Visa
1

HI,

I am working in H1B in US. My wife is currently on H4. She has an employer who filed an H1B petition for her this year April 2014. But now we have to travel back to India since my father is critically ill. I want to know the feasibility of the travel. Below are my questions.

  1. I have heard while she is COS petition, she cant travel back to India until it is approved, Is this true? Is there a way out of it?

  2. Can she travel to India once it is approved and come back before October to work on H1B?

  3. If she is not travelling, can I travel leaveing her back here? Do I need to be present in US for her to retain her H4 status?

Kindly help me with this.

2

  1. She can travel, but her COS will be abandoned if she leaves US before her H-1 approval. She will then have two options - return on H-4 and file for COS from H-4 to H-1 later; or return after getting her H-1 visa stamped

  2. Once her H-1 is approved w/ COS, she can leave US and return prior to Oct 1 on H-4, and still be on H-1 from Oct 1.

  3. Yes, that should be fine.

3

Saurabh:

Your answer to 2. Once her H-1 is approved w/ COS, she can leave US and return prior to Oct 1 on H-4, and still be on H-1 from Oct 1.

How is that possible, I guess the I-94 numbers will be different that was filed when she is here and when she returns. This rule applies to people who are already on H1B when they travel while a case is pending and return when a case is still pending.

4

There is an exception to Last Action Rule for a future dated COS approval. Her COS will be approved with a start date of Oct 1, and when she returns on H-4, it will have date of (for example) Sep 1. Her I-94 will remain her H-4 one from Sep 1 to Sep 30 and will then flip to H-1 I-94 from Oct 1.

Last Action Rule depends upon the I-94 effective date and not I-94 approval date.