H1 Visa stamping after COS approval

USA H1B Visa
1

Hi Saurabh,

I have an approved H1 which is valid from Oct 2013 and since that was filed initially without COS, My lawyer has separately filed just for COS from H4 to H1 and I am expecting a decision on the same in next two weeks of time. So in this context, I would like to get your valuable advice on my following queries:

  1. I am expecting a decision on my Change of status from H4 to H1 by August 15th 2013, if in case my COS gets approved in next two weeks, then can I travel to India on August 18th or so (lets say if I get an approval by 15th or 16th August) and return by October 1st 2013. Does my travel in any case would effect my H1 status ?

  2. I am tracking my COS case by the USCIS receipt number and if I find an approval decision in the USCIS site then can I travel based on the decision mentioned in the USCIS site as the USCIS generally takes some time in sending the approval notice package. I have an urgency where I am expected to be in India by August 20th 2013 so in this case can I travel immediately once I find a decision on the USCIS website?

  3. If my COS gets approved then I believe my H1 comes into effect starting from October 1st 2013. Now as I am planning to travel to India post COS approval for 2-3weeks then can I also take a chance and go for stamping during that time so that I can travel to India at will on a stamped H1 visa(as I would be on COS and may not be able to travel to India for some time after October 2013).Will the consulate accept my case as I would be a holding a COS effective from October 1st 2013 or does the COS effective date has nothing to do with this?

  4. If in case I go for a stamping and if my Visa gets denied at the Consulate back in India then can I return to U.S. on my H4 before October 1st 2013 and continue on my H1 COS post October. In such scenario, does my COS get effected due to my Visa denial back home or will it stand effective as usual from October 1st 2013 irrespective of the stamping result back home.

  5. I am on H4 valid till Sep 2014, if I go for H1 stamping and if in case it gets approved back home then will the Consulate cancel my H4 on my H1 approval or will there be no effect on my H4 irrespective of the decision?

I have always requested for your suggestions and truly appreciate all your responses and great advices through this forum.

As usual, hoping to listen from you soon on my above concerns so that I can plan my things accordingly.

Thanks a lot for your time.

2

  1. You can do that. You can return on H-4 visa stamp and still be on H-1 from Oct 1 based on this COS approval. Keep the I-94 attached to COS approval w/ yourself as this will go into effect from Oct 1.

  2. Yes, this risk looks reasonable. If they do it right, then H-1 should have a start date of Oct 1.

  3. You can go for H-1 visa stamping even after having COS approval.

  4. Yes, COS still goes into effect. However, if the consulate sends the petition back to USCIS for reconsideration and they issue NOID and denial, then you will have to stop working on that petition

  5. Yes, it is possible that they cancel the H-4 visa stamp when approving H-1 visa stamp. It will be officer’s discretion.

You can run this by your attorney as well.

3

Thanks a lot Saurabh for all your responses, Will get back to as usual for other queries on this

4

Hi Saurabh,

My H4 to H1 COS has been filed as an amendment and in such scenario if my COS gets approved now, then what would be the status of my previous H1 which was approved without COS. Will it be still effective or not?

Thanks a lot.

5

The amendment amends the old petition. So your new amended petition will become active and the old one will become expired/invalid. I think they have the same petition numbers. Your validity dates etc will be governed by the new amended petition.

6

Thanks a lot Saurabh, I find my H4 to H1 COS status now approved but when I checked with attorney through my employer on traveling to India now and returning by Oct 1st 2013, he is not very sure and he wants me to stay back rather than to take a risk. The lawyer says he may have to get the USCIS advice and itself takes a month for their reply but as mentioned I have to go to India. Although I got the answer as yes from you still the lawyer is not sure on this. So what can I do now, I would definitely like to travel if there is no effect on my H1 COS since I would return before Oct 1st in any case.Please advice me … Thanks a lot for your help also please share if something is published on USCIS about this.

7

Here is an article from murthy.com (a very prominent immigration site)

It seems the site is down right now, and here is a cached version from Google: http://webcache.googleusercontent.com/search?q=cache:5ENInhg3QiEJ:www.murthy.com/2005/05/06/travel-after-change-of-status-approval-with-future-start-date/+&cd=2&hl=en&ct=clnk&gl=us