Can I travel in H4 before Oct 1st after my H1 is approved?

I am in H1 visa and my wife is in H4. My H1 and my wife’s H4 visa expired in 2013 we got our extended petition and new I94 valid till 2015. We are planning to apply for H1B visa for my wife in April 2014. We have a family emergency situation and thought of traveling to India. In that case we will have to get our H1 and H4 visa stamped before entering US.

  1. If we are traveling to India before April 1, Can my wife’s employer file her H1 petition when we are out of country?
  2. Say, she got her H4 visa stamped in March 2014, Can she come back to the US in H4 visa after her employer filed her H1 in April?
  3. Say, her employer is filing H1 in premium process, how soon should she return back to the US? (If answer to question 2 is YES)
  4. Say, her employer is filing H1 in premium process and it got approved and is valid from Oct 1 2014. Can she travel to India between May - September, get H4 visa stamped, return to the US in H4 visa and start working with the approved H1 from October 1?

I have answered your questions below, hope they are helpful

  1. If we are traveling to India before April 1, Can my wife’s employer file her H1 petition when we are out of country?
    Yes. Please make sure she signs documents if any on which her signatures may be required before leaving. Present location of applicant must be marked ‘USA’ and not ‘India’

    1. Say, she got her H4 visa stamped in March 2014, Can she come back to the US in H4 visa after her employer filed her H1 in April?

    Yes. There is no conflict here.

    1. Say, her employer is filing H1 in premium process, how soon should she return back to the US? (If answer to question 2 is YES)

    It depends on employer recommended start date

    1. Say, her employer is filing H1 in premium process and it got approved and is valid from Oct 1 2014. Can she travel to India between May - September, get H4 visa stamped, return to the US in H4 visa and start working with the approved H1 from October 1?

    A tricky question. H1B in premium process once approved will start showing in the US Embassy system within 40 days. I suggest getting H-4 stamped as soon as you reach. This will allow travel whenever she wishes. If US port of entry, CBP, has a question on this same data displayed on their systems (H-1 approved then why are you travelling on H-4) , she can say start dates have not been set for H-1 so she continues to be a dependent. This is a legally correct and enforceable stand. The law is on your side.

    All the best

    Dr. Sandeep Shankar, Colorado Heights University, Denver, CO 80223, USA. www.chu.edu; sshankar@chu.edu