H4 COS while H1 extension is pending

USA L1, L2 Visa
1

Hi Saurabh,

My project got finished 3 months back and I am on bench from then. My employer has filed my extension only a couple of weeks back just before my H1 expiry date. My wife has a full time job and she is also on H1. Now my kid is little unwell and as per doctor’s advice some one has to take care of him for a couple of months.

My wife cannot stay back home as she has a more secured job when compared to me, I am a contractor so I am planning to move to H4 immediately as I am already on bench without a project from quite some time. I need your advice on the below:

  1. Can I change to H4 while my H1 extension is pending. I got my H1 extension receipt no.and my I94 was expired a couple of weeks back.

  2. If I change to H4 will it be permitted now as I don’t have a valid i-94 now ( I am staying here as my employer filed for it just in time)

  3. I can pay for my H1 extension PP expenses but I dont think I need it right now and moreover I dont thin I can afford it now so can I change to h4 even with h1 extension (wiith i-94) pending.

  4. If I can change to H4 , then what is process to change to H4 and how much time will it take. Do I need to again pay something for H4 conversion like PP charges etc… to get it done faster.

  5. After my kid’s treatment, like can I change back to H1 then if I change to H4 now. Will it then impact my H1 conversion then because of this move ( to change to H4 now while my H1 extension) is pending.

I definitely need your advice and thanks for all your suggestions on this blog.

Regards

Kanchen

2

  1. COS cannot be applied as your current I-94 has expired. So approval of H-4 COS is dependent on H-1 extension approval (which will issue new I-94)

  2. See (1)

  3. No, you cannot get COS w/o H-1 extension approval. So get H-1 extension approval w/ PP and then apply for COS.

  4. You have to file I-539. Processing time is 2-4 months

  5. Once H-4 COS is approved, you can move back to H-1 using COS to an existing approved or new petition.

Another option is to leave US, get H-4 visa stamped and return on it.

3

Thanks saurabh for your suggestions.

If I get my H1 extension and i-94 by paying for PP, then do I need to wait for 2-3 months to get H4 or is there any PP as well for filing H4 as well?

If I file 1-539, the what status will be considered till I get the H4 COS approved so can I stay back in US till that time?

I think the option if leaving to US and get back soon after H4 stamping seems to be a much easier and safe option. Please advice.

Thanks a lot saurabh again for all your help,

Reagrds
kanchen

4

H-4 COS has no PP option. You will remain on H1 until your COS gets approved.

If you want to move to H4 ASAP then traveling outside of US and returning on H4 is the best option.

5

Thanks a lot Saurabh for for your advice. I think I will now travel to India and get my H4 stamped and will reapply for my H1 COS once I am back and my kid gets well.

Will get back to you if I need any further advices with this.

Appreciate your time and effort.

Thanks
kanchen

6

Hi Saurabh

I just need one more advice from you on this. As mentioned to you earlier, my wife is on H1 so I am planning to get my H4 stamped in India due to my kids health although my H1 extension is pending. But my wife doesn’t have any H1 stamped till date as she came here on H4 with me and then she converted to H1 here. In this context, if I go for H4 stamping based on my wife’s H1, will it create any problem as she never had any H1 stamped on her passport but she has valid I797 and i-94 ? Will they ask for my wife’s H1 visa stamping at consulate during my H4 stamping or is it sufficient if I carry her valid I797 and her pay stubs? Also do I need to carry my paystubs till date even for my H4 stamping as my h1 extension is still pending?

Need your advice again.

Thanks a lot again for all your help.

Regards
Kanchen

7

I don’t think it is a pre-req for her to get visa stamped first. Run this by your wife’s attorney as well, if you can.

You should carry her 797 copy and recent payslips and copy of employment letter. Also carry the same documents for your H-1B to show that you were maintaining legal status inside US.

8

Thanks for your suggestions Saurabh

Anyways I have to convert to H4 so I will take a chance and will try to get my H4 stamped based on my wife’s 797. Since my H1 extension is pending so is that fine if I provide the receipt no. as the proof of my status here as I don’t have a valid H1 now and my last H1 got expired a couple of weeks back?

Thanks a lot for all your help

Regards
kanchen

9

Yes, carry 797C (receipt notice) to show that it was timely filed and print out of online status to show that it is still pending. This will prove that you were in legal status while inside US.

10

Thanks gain for all your help Saurabh.

Will get in touch with you for any further questions on this.

Regards
Kanchen

11

Hi Saurabh,

I am planning to travel to India sometime next week as I wanted to change from H1 to H4 immediately and since my H1 extension is pending as explained above.
But I have a new problem now for getting my H4 stamped. As mentioned in my above post, my project got completed a couple of months back and I am in bench currently so my employer is not paying anything and has not generated the paystub for the March month and I don’t think he will generate it for April as well as I am still on bench. When I requested him for paystubs he says he cannot pay me on bench. So I have few below concerns based on this:

  1. I have my pay stub till Feb 2016 so if I go for a H4 stamping based on my wife’s H1, is it mandatory to have the paystubs for all the entire period of my H1 here? Does it effect my H4 stamping?

  2. Lets suppose if my H4 is stamped and as I mentioned above if I come back to US and if I apply for new H1 and COS under cap exempt then will this period of stay (without pay stubs) here create any issues with my H1 approval then as I will not have any paystubs for March and April 2016?

  3. Are the employers responsible to pay an employee on H1 even on the bench period? I have been with my employer for past 3 years and on bench only from last couple of months but he has not paid me or generated the paystub for March 2016. I have not submitteded any time sheets as well for this bench period as I am not on a project so he says he is not entitled to pay me.Can I approach DOL or some other legal authority to get my pay for the bench period or is it legal on the employer front where he need not pay the employee without time sheets during the bench period?

I need your advice Saurabh as always and thanks for all your support.

Regards
Kanchen

12

  1. It is better to have those payslips to show that you maintained legal status all along. It is VO’s discretion whether to ask for those payslips or not. If I have to guess then I would say, it won’t be asked as you are going for H-4 visa at the moment.

  2. Same response as (1). H-1 transfer would get approved, it’s I-94 attachment that could run into issues. If new H-1 is approved w/ consular processing, then you will have to leave US, get H-1 visa stamped and then return on new H-1 petition to work for the employer. When the time arrives, your new attorney can write to USCIS reasoning why payslips are missing and plead your case.

  3. Yes, they are required by law to pay you even when on bench. You can complain to DOL about the missing salary within 1 year of violation. However, this would burn the bridges b/w you two, so tread carefully.

13

Thanks a lot Saurabh. I will travel and get my H4 stamped. I will get back to you for any further questions. I think that I would need your suggestions once I am back and I apply for my H1 COS.

Also just wanted to check with you if employee have issues like this where employer does these kind of violations then I think it effects an employee more as he has to deal with USCIS for his approval and other things. So if USCIS asks an employee for an explanation of such things during his immigration process then how can it be conveyed to them that its an ex-employer fault because DOL is a separate entity and it only looks into the pay violations and not about the status. How such things can be addressed by an employee while replying to USCIS so that it doesn’t hamper his future status and stay in US. Just wanted to have your views before actually complaining to entities like DOL.

Thanks
Kanchen

14

I am not sure what the best response is. It would be better to ask an attorney about the response to such a query.