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Immigration Issues/H1 to H4. Please advice


What is the name of your state? California

My wife and I have been on H4 and H1B visa for last 3+ years respectively. We recently (November 2003) got our extension for the next 3 years and got it stamped (Sept. 15th) on our passports at St. Louis. So that is valid until November 2006. Now, my wife got her H1B approved (receipt date Sept. 17th and Notice date Sept. 24th) from a contracting agency (situated in New Jersey) valid from October 1st 2004. Along with her Visa, I guess her status was also changed. Her I129 form has the “Part 2 Box 4.b” is checked and her I797 says “The above petition and change in status have been approved.” She hasn't yet received any pay stubs, but has applied for her SSN. Now, my wife doesn't want to continue with the contracting agency and wants to go back to her h4 status. So now here are my questions:

1. Is her H4 still valid?

2. Is her status legal currently? (Since it is more than 60 days past her H1B without paycheck).

3. If no to #1, then how can she convert back to H4? What is the procedure for this (form DS156 or I539)? How soon we need to do this?

4. Since her H4 is still stamped on her passport, will crossing border (Mexico or Canada) with the H4 solve the problem? I mean will it supersede the H1B? Is this option better than applying for change of status? The contracting company is ready to issue paystubs once her SSN is available. Is it advisible to get a couple of pay stubs and then convert back to H4?

5. Will this have any affect on our future Green card processing?

Please let me know.

1.  Valin in what way?  The visa stamp is still valid (as long as it has not expired) but her status has been changed to H-1B.

2.  She is not currently maintaining her status as she is not working for the H-1B sponsor.  As an H-1B noinimmigrant, the only reason that she is permitted in the US is to work.  If she is not working, she must either change to a different status or leave.  Since she has not done either she is subject to removal by the ICE (AKA Deportation).

3.  To change to H-4 she can file a change of status (I-539) or she can leave the US and reenter on a valid visa stamp.

4.   The I-94 controls her status.  At border crossings from Mexico and Canada they sometimes do not issue new I-94s.

5.  It might.  She is in the US and not maintaining her status.  If she is placed into deportation proceedings she will have serious problems.  This is unlikely but it is possible.  

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James D. Mills, Esq.


I can answer questions regarding business and family immigration, deportation, removal, exclusion, the immigration consequences of crimes and structuring criminal cases to eliminate or mininize immigration consequences.


I have been a licensed immigration attorney and a member of the American Immigration Lawyer's association for more than five years.

American Immigration Lawyer's Association.

Juris Doctorate, Rutgers School of Law- Camden, 1997

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