sherbert

Long story short:

The OH has been headhunted and made an offer he can't refuse. New employer has filed for (transfer of?) H-1B (capped). Even though we pushed them to do it before 1 April, when premium processing was suspended, they faffed about and have only just filed.

They guestimate 5 months processing time and expect him to quit his current job and start working for them as soon as they get the file receipt (in 2-3 weeks). He would like to move asap. Buuuuut:

- How do I (H4) travel outside of the country during this period? Immigration always asks for OH's employer and what I say will be different to what is on my visa and petition. OH will most likely not leave the country but I already have flights booked.

- Lawyers say that they 'strongly believe' that the visa will be approved. Of course they cannot give any guarantee. If it's not approved, does this mean that OH has effectively just given up his H-1b and we will be visa-less?

Has anyone been through this and can they share their experience?

ian-mstm

I'm sure someone will correct me if I'm wrong... but your status is tied to your husband's status. So long as your husband remains in valid H-1B status, your H-4 status is valid. Remember - a visa is nothing more than a travel document... it's the underlying status that's important.


Bring proof of your husband's change of employer... but so long as his status is valid, so is yours.

Ian

sherbert

Thanks Ian. So even though he does not work for the employer stated on the visa, as long as there is another in process he will remain in status. I will ask the lawyer about proof of employment for the new company.

Let's just say the visa is not approved. What happens then? There's no reason why it should be denied. I just want to cover all angles.

ian-mstm

I believe this is true, yes. IIRC, he can actually start work for the new employer as soon as the paperwork is submitted... even prior to its approval.


I hope he's not applying for a visa. He should be applying for a change of status.


If he's currently in H-1B status then if the new change is denied he'll still be in H-1B status but he'll need to keep working for his current sponsor. From an immigration POV, I don't think it'll be anything worse than that. The problem comes if/when the current company finds out about his possible move to another company... they could fire him - and there's absolutely nothing he could do about that.

Ian

sherbert

Yes. That is what is happening.



When you say current sponsor do you mean the one listed on the petition or the one that has applied for the change of status (i.e. the new employer). If the former, that's not going to work because he'll already be working for the new sponsor.

Why and how would they ever find out? Plus if he gets fired, he'll start work straight away for the new employer...so no problem here I think.

giri26

Do you still have a valid visa? If not then you would not be able to obtain one unless your husband's I797 gets approved. If you have a valid visa, and your current visa is going to expire soon, you may only get I94 till then. This means that you will have to file for H4 extension once you get back. It is always better to travel overseas with a current I797, even if the visa is with the old employer. People travel all the time with new I797 and old visa on their passports and they get I94 till the end of their new petition.

If you have to appear for a visa interview, you will not be given a visa unless your husband's new I797 gets approved. You will not be eligible for a H4 as your husband does not hold a valid I797 when you appear for an interview.

ian-mstm

You asked what would happen if the change of status was denied. If it's denied... he has to keep working for the old employer.

Ian

sherbert

The plan is to start working for the new employer as soon as the receipt is returned whilst waiting for the change of status (currently taking 5 months since they stopped premium processing). So the question actually was what happens if he is already working for the new employer and the change of status is denied.

giri26

It would mean that he would be out of status as he will not have a valid H1B status.

sherbert

Yes, our visas are valid for another 18 months so I have a current I797. The issue is that the employer listed on the I797 won't be the employer that my OH works for (if he decides to move jobs while the change of status is in process). The question is, and I think it has already been answered by Ian-Mstm, is will I have issues at immigration when I mention the name of OH's employer and it is different to the one on the I797.

ian-mstm

I believe giri26 is correct. If the change is denied, then he becomes out of status (and so do you). He will need to stop working immediately. He can't work for the new employer, and he can't return to the old employer unless the old employer submits a new change of status on his behalf... but why would they even bother?

Ian

ian-mstm

You should be okay so long as you have proof of hubby's change of status. While I'm thinking about it... the only real issue for you is if the change of status is denied while you're outside the US. If that happens, you'll no longer have H-4 status and have no way to return to the US to live.

Ian

sherbert

Thanks all: I am clear. If the change of status is denied and he is working for the new company already we will be screwed aka out of status and will have to leave the country.

giri26

That's the problem, the current I797 will not work, if your husband starts to work for the new employer. The old employer will have to inform USCIS by law that your husband no longer works for them which will mean that the I797 which you have right now will not be valid as soon as your husband quits his current employer. You would need an approved I797 from the new employer to enter US with the old visa you already have. So here it is:

1. The old visa is fine but you would need the new approved I797 of your husband with the employer he would be working with. The old I797 which is with his current employer will not work at the immigration as it will be invalid as soon as your husband stops working for them.

2. I would suggest you to wait for your husband's new I797 before you travel or the other option would be for your husband to resign his current job after you come back from vacation. The third option would be that you stay overseas till your husband's I797 gets approved and you carry the copy with you while entering US.

You need to be very careful making such decisions. I have had my share of I797's and US Visas in 14 years I lived there. Unless you have a valid/approved I797 from your husband's new employer you cannot enter US with the old visa. If you mention the new employer at the immigration they will ask for the new I797. You cannot mention the old employer as your husband does not work there.

sherbert

Hrrrrm. This changes things quite drastically then. I was under the impression that I could travel into the country with the receipt notice of change of status (which should arrive in next couple of weeks) + valid visa. I will re-check with the lawyer, whose exact words were "You both can travel while the H petition is pending as long as you have a valid passport and a valid visa."