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Immigration Issues/Change of status from H1 - H4 - H1

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Question
I came to U.S. on H4 visa & processed my H1B premium last year. My H1B started from 1 Oct 2008. Since then I am on bench looking for a project.

Now since, It is very getting difficult to get the job due to economic recession, I am planning to change back to H4 status. I guess I need to use form I539 for change of status. How to go about changing the status back to H4. Do I need to submit the any proof (ie. last 2 paystubs, appointment letter, termination letter etc.) along with I539 form to show that I was in a valid H1B status before applying for change of status to H4.

In future, if I am getting a job again, Is it possible to change  the status back from H4 to H1 on the same H1, I held previously or I have to apply for a new H1.

Appreciate your response on this.

Thanks in Advance,

Best Regards,
Sweta Agrawal

Answer
Hi,

You are currently violating H1B status by not being employed at the agreed upon salary by the H1B employer. In order to be granted change of status from H1B to H4, the USCIS normally expects the applicant to provide evidence that he or she has maintained H1B status, and this is best shown through recent pay stubs (latest 2 months is preferred). If available, a Form W-2 can be attached as well. Form I-539 is the correct form for filing change of status to H4: http://www.uscis.gov/files/form/i-539.pdf

The USCIS has discretion to still grant change of status even if no evidence is provided regarding maintenance of current H1B status if an adequate explanation is provided for absence of recent pay stubs. Such explanation could, for example, include statements to the effect that the employee is not at fault for failure to produce recent pay stubs, since the employer repeatedly promised to put the employee on the payroll.

You can always change status back from H4 to H1B through the filing of a new H1B petition. You will not be subject to the visa cap. You will need to wait until the H1B petition is approved before you can begin working for the H1B employer.

Regards,
Ajay K. Arora, Esq.
www.H1B1.com

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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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