I possess an approved H1B petition which I got in the last year's (2020) lottery and is valid till Sep 2023, but I

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Customer: Hi,
I possess an approved H1B petition which I got in the last year's (2020) lottery and is valid till Sep 2023, but I couldn't get the stamping done in India due to the visa appointment slot unavailability.
Currently, I’m in the USA on an H4 visa. I’m planning to resign from my current H1B petitioner(employer)I am trying to find out new employment opportunities in the USA with the help of consultancy firms and checking for the possibilities to convert my H4 to H1B via a "Change of Status" petition.I have a few questions around this corner.1) Upon resignation, if my current employer revokes my approved H1B, is it still possible to file a Change of Status petition with a new employer from the USA?2) As my current H1B is not yet stamped, once Change of Status gets approved with a new employer ( and receives a new H1B approval notice), do I need to travel back to India and get it stamped there for legally working in the USA?Appreciate your earliest response on the above matter. Thanks in advance.Regards
Answered by Guillermo Senmartin in 76 days 1 year ago
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Guillermo Senmartin
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Guillermo Senmartin, Expert

Welcome. Thank you for the opportunity to assist you today. My name is*****  and I have been practicing law for more than 15 years. I’m sorry to hear that you are having personal and legal issues. I know that legal issues can be can be quite frustrating.

Just to be clear, JA is an information website. We do not provide legal representation and no attorney-client relationship is formed.

Please be patient while I research and Prepare  responses to your inquiries. I want to ensure that you get the most up to date and best answers available.

I strive to provide responses that will assist you in reaching a resolution as quickly as possible.

I’m here to help.

Response:
I’m sorry to hear that you are having these personal and  legal issues. I know that can be frustrating.

1) If they revoke, you cannot do the Change of Status.

2) Yes you do.

The easier  and better option is for you  to schedule an appointment with a nearby US Consulate in Mexico and get your visa stamping now if you can.

In case no one is telling you this: it is very hard to find new H1b job even with the help of a consultancy firm as the market is flooded with available H1B job applicants who are probably more qualified and more eager to accept a lower salary than you are willing to do so.

Hence, my recommendation is you need to keep your H1b job and then find another better H1b job.

With a valid H1b visa, you can do the H1B transfer to another US employer with ease.

What else may I answer for you ?

Customer
Thanks for the reply. I have. a few queries also;
1. In case if we do a consular appointment in the Mexico US consulate, and if in any case, my visa got rejected or get administrative processing(221g), Can I travel back to the US on my current H4 visa on the same day? 2. Is 'Mexico US consulates' are open now for Non-Mexican residents for visa stamping?
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Guillermo Senmartin, Expert

You are quite welcome.

1. Yes you may do so using your H4 visa.

2. Yes they are open for you as long as you have scheduled an appointment with them in advance.

They do not accept walk in and will turn you away and ask you to make a scheduled appointment in advance.

Customer
Thanks for the reply.
My Current Visa Status: I am in USA on H4, but have a valid H1B approved notice(not stamped) received in 2020 from my Offshore Employer in India.I am still confused about the 'Change of Status' petition in my case.
1. If I want to continue with my current H1B (with my India employer), do I really need to file a 'Change of Status Petition. I guess only stamping is required for working legally in the USA. Please confirm.2. If I find a new employer in the USA, I know we need an H1B transfer. Do I really need to file a 'Change of Status Petition along with the H1B Tranfer? Please confirm.
3. If I find a new employer in the USA and transfer my current H1B, is it mandatory to have the H1B visa stamped until and unless I stay within the USA? I guess only the new I797 is enough for working legally in the USA. Please confirm.
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Guillermo Senmartin, Expert

1. Yes that is correct, you will need the visa stamping to activate your H1b.

2. If you have a valid and active H1b visa, your new employer will just file for H1b transfer and there is no need to file for change of status.

3. You will need to have the visa stamping to activate your H1b. without it, you cannot do the transfer

Customer
Thanks for the reply.
Regarding your response to the 3rd question, I do have confusion.What I understood from one of the other attorneys is that it is possible to transfer my current H1B (with a new employer in USA) even without stamping my current H1B!!!. My current I797 approval notice is enough for the H1B transfer with the new employer.And also I heard that once the H1B transfer completes with the new employer, it is not mandatory to have a new H1B stamped until I exit USA. I have to do a stamping (for the new H1b) when I have to re-enter the US after exit.Could you confirm the correctness of my understanding?
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Guillermo Senmartin, Expert

In order to help you out and give you the chance to speak to other Experts...I will opt out.

Another Expert will jump in and offer their own take on this.

Good luck and take care!

Customer
Hi Guillermo, Kindly go through the above and please help me out
Customer
I'm now on H4 on my spouse's H1. But I do have a valid H1 approval notice also. She now finds another employer who is trying to file an H1 transfer for her in premium. She wants to do my H4 filing also with this new employer. As I also have a valid H1B approval, I am also finding an employer who can do my H1 transfer in premium along with COS(H4 to H1).
In this case, if both H1 transfers happen successfully;1.  What will be my new visa status? Am I will be in new H1 till my H4 ( which is filed along with my spouse's H1 transfer) gets approved?2.  As we know we can't have a premium on H4 filing, it can take months to get my H4 ( filed with my spouse's H1 transfer). So once my H4 gets approved, will my new H1 get invalidated with the new H4? I mean will I be on H4 after that?3.  Adding to the 2nd case, can I go for H4 to H1 COS and regain my H1?
Appreciate your earliest response.
Regards
Customer
Kindly get the answer for the above query or refund the money back.
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Guillermo Senmartin, Expert

Unfortunately, because you did not request me by name like I asked you to, Kevin responded (not that he respects when a customer requests someone anyway). Go ahead and ask for your refund. If you want help from me, next time specifically request me by name and if someone else responds, then say that you want me, specifically. The website prefers a quick answer to the customer over anything else.

Customer
Hello Guillermo, can you please answer the below question?
Customer
I'm now on H4 on my spouse's H1. But I do have a valid H1 approval notice also. She now finds another employer who is trying to file an H1 transfer for her in premium. She wants to do my H4 filing also with this new employer.
As I also have a valid H1B approval, I am also finding an employer who can do my H1 transfer in premium along with COS(H4 to H1).In this case, if both H1 transfers happen successfully;
1. What will be my new visa status? Am I will be in new H1 till my H4 ( which is filed along with my spouse's H1 transfer) gets approved?
2. As we know we can't have a premium on H4 filing, it can take months to get my H4 ( filed with my spouse's H1 transfer). So once my H4 gets approved, will my new H1 get invalidated with the new H4? I mean will I be on H4 after that?
3. Adding to the 2nd case, can I go for H4 to H1 COS and regain my H1?Appreciate your earliest response.
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Guillermo Senmartin, Expert

As a courtesy, I will respond, but please no follow-up questions. Why? Because this question was already completed by Kevin and he was compensated for it. I will not be compensated for it. If you need more help, please post a new session and write FOR GUILLERMO so I may be compensated for my response. Thank you for your understanding.

1) If you have never worked on H-1B status before, meaning that you went through the lottery this year, you cannot transfer a status that you never activated before. So you will have to go to work for the H-1B Petitioner on or after October 1, 2021 and then after that you may transfer. If you did previously activate your H-1B status, then it will go by the last action rule. If your H-1B COS is approved after your H-4 extension, you would be in H-1B. If your extension of H-4 if approved after your H-1B COS, then you would be in H-4. Also, you do not need to do an H-4 extension only because your spouse is changing employers. So as long as you still have time on your I-94 in H-4, you don't need to extend.

2) Yes. See what I said about the last action rule above.

3) Yes, as long as you activated your H-1B before. Again, see my explanation in #1.

Remember, please, no follow-up questions as I am not being compensated in this thread. If you need more help, please post a new session and write FOR GUILLERMO. Thank you.

Customer
Hello Team,Appreciate your earliest response in the below case;I came to US on H4(dependant visa) in March 2021 on my spouse's h1B. The H4 visa is valid till March 2023.
I also have a valid H1B approval notice received in Sep 2020, which was got picked in the 2020 lottery.Recently my spouse(H1B Holder) got another job in US and new employer transferred my spouse's H1B in Nov 2021. My Spouse's new H1B is valid till Oct 2024.
Along with my spouse's H1B transfer, my spouse's new employer filed H4 extension for me and my kids (they kept me as the Primary Applicant for H4 Extension).
H4 extension approval is still pending.As I already have H1B approval, I am getting a new employer in the US and they are starting filing COS (H4 to H1B) petition for me.My Questions are;Once COS is approved by USCIS;1. Whether my visa status will change to H1B?
2. I assume my spouse's immigration attorney (of the new employer), needs to file my H4 extension withdrawal request. Is that true?
3. If H4 extension withdrawal request is submitted, what will happen to my kid's H4 extension as I was the Primary applicant at that time? Will H4 extensionpetition canceled for them also? Will they move to Out of VISA Status or need to leave US?
4. Is there any way I can apply H4 extension for my kids along with my COS petition? or do I need to wait till my COS gets approved?I am confused. Kindly guide me.
Appreciate your support!!Prasad
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