Wife travelling to India for stamping but H4 Petition (I539) not approved yet !!

Hello Friends

Please can anyone help me with the below scenario.

I was on L1 from a IT Mutinational Company A, I filed my H1 through an Indian Desi Consultancy and got my H1 approved in Oct 2015. Currently I am working at a new client location and my wife has to go to India, her H4 petition has been applied but it is not approved yet.

She has currently an expired L2 visa and hence needs to go for stanping - Will there be any issue if she goes for stamping before the H4 petition is approved ??

Please advice.

Are you working on H-1 or L-1 currently? Also, was your H-1 approved w/ COS?

I am currently working on H-1 , my H-1 was approved w/COS.
I am not sure what is COS but as far as I know I did not have to leave the country and had a change of status.

My amendment has not been filed yet and my wife’s I 539 has not been approved yet.

If you are working on H-1 now, she cannot appear for L-2 visa stamping. She has to appear for H-4 visa stamping.

It is a miss on part of your H-1 employer to not include her in your H-1 application. Had they included her, she would have moved to H-4 when you moved to H-1.

Make sure you are getting paid on H-1 as she would need to carry most recent payslips for her H-4 visa stamping.

My question might have got misunderstood. Few pointers below might help

  1. I am currently working on H1 , drawing H1 salary.
  2. My H1 got approved on 1st October and ONLY then did my employer apply for H4 for my wife.
  3. My wife had got the receipt number for her H4 but in USCIS system it is still showing as “Case Received… we received your Form I-539, Application to Extend or Change Nonimmigrant Status”.
  4. My question or concern is now my wife is going to India for and while retuning back she will go for H4 stamping. Will there be any issue if by that time her I-539 is not approved yet. Will she still get a H4 visa stamped.
  5. I have my I797 , pay slips , offer letter do not have the I129 and LCA- My employer is not giving those documents. Also my amendment has not been filed yet. Please let me know will this be any concern for H4 stamping. If yes , please advice what to do.

Great Thanks for your help

Her L-2 ceased to exist when your COS to H-1 approved. Experienced employers and attorneys would have included her in your H-1 petition, so that she could move to H-4 at the same time as you.

Anytime she spends inside US on L-2 w/o pending COS can be termed as out of status. It is a gray area but I don’t see a strong probability of it impacting her H-4 visa stamping. Still it is something to be aware of.

Her pending COS would be abandoned as soon as she leaves US. She should carry copy of I-539 receipt to show when it was filed along w/ your payslips etc.