Immigration Issues/H4 TO H1



My wife came on H4 visa. She applied for a H1 in last year’s cap 2007. She got H1B approval notice to start work from Oct 2007 with a status change & I94. Meanwhile she become pregnant and could not start work from Oct 07. Her employer did not run pay role for her and requested to apply for long leave. She thought of start working from Jan 08. Due to bad health she could not as planned and still taking rest. She had SSN. Its been almost all 6 months since she got approval notice to work. What would be current status? Is she has H1 still valid or no? Due to bad market she is not getting any job now though she is ready to work. Her employer is not running any pay role for her. We jointly filed tax returns as she has no earnings. Is she required to change her visa status back to H4? Or just can wait for some more time? What would be the problem if she stays as she is now? On what visa can she travel to India? can she go on H4 and come by H4 as H1 not stamped yet?

Thanks for helping us

First, I do not think that people can take leave because they become pregnant. The only leave under such conditions would be the Family Leave Act or under any other employer maternity or parental leave policies. If this was the case then such leave is allowed and your wife is still considered in status. Similarly, if she was sick and the employer has a similar sick leave policy that is common for all employees. If this was the case then it would be proper evidence in an H1 to H4 transfer case to show that the individual is in fact still employed, but on a proper leave, and a letter from the employer regarding the fact that the individual remains employed but is on maternity or parental leave would be considered sufficient.

I would suggest that you change status to H-4. If she has a valid H-4 she can reenter the US on H-4. I am not sure it was worth all this trouble to change status to H-1b in the first place. Lot of folks like you do this and jeopardize their status.


Immigration Issues

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Ramasamy Krishnan


Immigration particularly business immigration and National Interest Waivers.


I have over 7 years of experience in all facets of immigration law. Specifically focusing on filing of National Interest Waivers (NIW), Alien of Extraordinary Ability and Outstanding Researchers/Professors petitions for Ph.D's and other advanced degree professionals. I have also assisted clients in numerous PERM, H-1b, L and other nonimmigrant visa applications. I am a partner at the law firm Ashley & Krishnan,

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