My spouse entered USA in Jan 2015 with H4 stamping valid till July 2017.
In Apr 2015 we applied her H1 and got approved to work from Oct 2015. However for personal reasons, she has not worked till date(July 2016)
and her start-up employer never mentioned about running pay roll.
Last month I got my I-140 approved and planning to move her from H1 to H4 EAD. First I need to apply her COS from H1 to H4.
But since there’s no pay roll running, I dont want to risk Change of status denial.
As she has not worked till date and still holds valid H4 stamping, I read somewhere that she can re-enter US on existing H4 stamp.
No need to go consulate for H4 visa.
This nullifies her H1 and gets new I-94 for H4. And I can apply her H4 EAD with new I-94.
But is this suggestible idea? Will she have any problems at Port of Entry. Or any future GC processing etc?
Thanks in advance,
Possible issues can arise in future related to green card process irrespective of whether she re-enters US on H-4 or not. She has been out of status for almost 10 months and this is serious.
The easiest way to fix her current visa status is to leave US and return on H-4 visa stamp.
She should also complain to DOL about the employer for not paying her the wages. As the wages can be filed within a year, you don’t have much time left.
Thanks for your response.
When you say, possible issues for Green Card. Does it impact my GC process as well?
As I mentioned she had personal issues and cannot work till now. So her employer asked to sign a letter requesting the postponement of her joining date. We sent this letter from Oct 2015 to Mar 2016. But we didn’t have any communication after that with her employer.
For now to apply here H4 EAD from H1, the best option is to go India and come back on her valid H4 visa stamp. This helps in getting new I-94 and then apply H4 EAD.
But is there any way to resolve 10 months pay roll issue/Out of status?
Any inputs are appreciated.
When you apply for I-485 and include her as dependent for AOS (Adjustment of status), this may cause an issue.
If USCIS picks-up this tenure they may be interested in knowing why she didn’t work. A lot of time companies use this pretext when they don’t have projects and don’t want to pay her the salary. If she had medical reasons, she should keep copies of those documents.
The right thing to do was to move to H-4 immediately if she had decided to delay her joining. As long as she remained on H-1, it is up to reviewing officer whether to treat this favorably or not. A good attorney may frame a response supporting your case.
In order to stop the bleeding now, she should leave US and return on her H-4 visa. She can ask the employer for back wages, but employer can respond saying that it was her wish to stay on H-1 but not work.
The employer is still holding her H-1 or have they withdrawn it? What’s the current online status for the petition?
Got it. So it will be issue for her status when I apply her as my dependent on my AOS. The priority date being 2016. This issue may surface only when my date is current which at this point seems 10-15 years from now.
Her employer didnt cancel her H1.
I just got my I-140 approved last week and one of my friends advised to move her to H4 EAD.
So we are exploring better options of changing her H1 to H4. Like COS while in US or go to India and come back on H4 visa stamp.
But if she goes India now and come back within a week or two, at port of entry will she have any issues like coming on her H4 stamp while she holds H1 visa? The office at POE would know about H1 and can pose questions. Isn’t sir?
I haven’t seen cases where they question immigrant about this H-1 and H-4 set-up. As long as she has the H-4 visa stamp she can enter US even if she has approved H-1 petition. Worst case if she is asked, she can reply that she wants to stay on H-4 and hence using H-4 to enter.
You have been a great help. Thanks again sir.
Sorry for asking again if u already answered.
Since my wife has H4 stamp on passport valid till July 2017, if she goes out and come back to US. She can enter with existing H4 stamp, correct?
Or does she need to go for new H4 stamping again, since her H1 is active from Oct 2015 and H4 is void.
She’s not working since Oct 2015 and not willing to work anymore.
Thanks in advance,
Her H-4 status became void in Oct 2015. Her H-4 visa stamp remained untouched as it has not been marked as canceled in the passport.
So she can still use that visa stamp to return to US on H-4 and remain on H-4 visa status.