Immigration Issues/H1-H4-H1

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Question
Hi Ajay,

Thanks in advance for your valuable time. I received my H1 with a COS from H4 and I94 effective Oct 01,08. I have since not been employed and so have been out of status. I am planning to leave for my home country in the next few weeks and apply for a fresh H4 based on my spouse's H1B.

My questions are

1) My spouse has to submit his W2 for this year. Last year he included me as a dependant. Should he simply exclude me this year since I am no longer on H4?

2) Will I be asked to prove that I maintained H1 status (W2,paystubs) at the Consulate even though I would be applying for H4. Will there be a major difference between leaving right away and leaving in a month- as in can I plan travel in March or is it advisable to leave immediately?
3) If I subsequently get an offer of employment in the future, can my future employer apply for a new cap exempt H1 without any paystubs?

Thanks again,

Regards,
Poojitha.

Answer
Hi,

Yes, it is a good idea for your spouse to not include you as a dependent since you are in H1B status, although you are technically violating H1B status since you are not employed by the H1B employer and paid at least the agreed upon salary.

At the Consulate, you will be asked to show both that you are maintaining H1B status (since that is your current nonimmigrant status), as well as the fact that your spouse is maintaining H1B status since you are now applying for H4 visa stamp.

You will be unable to show the Consulate that you maintained H1B status, since you have no pay stubs/W-2. If you violate your H1B status for 180 days or more, the Consulate will not issue you any visa stamp for 3 years. Therefore, I recommend that you depart the U.S. soon.

You will not be subject to the visa cap again for six years, so it is fine for another employer to file an H1B petition for you in the future. Since you will probably be changing status from H4 to H1B, you will not submit paystubs.  

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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