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Immigration Issues/Query regarding transfer from H1 to H4 and then back to H1 again


Hi there Ramasamy! First of all thank you very much for your service!!
Below is my query -

My wife came to US on dependant visa - H4
She got her H1B visa this time which is valid starting 1st Oct'07 to Sept'2010
We had a baby in Nov'07. So she can not start work immidiately. To take care of the baby, we need her to stay at home. In such a scenario -

1. How long can she stay on H1 and be in US in case she looses her job?
2. Is it advisable to stay on H1 without a job for 4-5 months or it is better to go back to H4?
3. If we decide to go back to H4, assuming she gets a sponsor in future, can she come back to H1 without going thru the quota? What is the time limit if this is possible i.e. to come back to h1 from h4 without going thru quota?
4. All this while, when she will be moving from h1 to h4 and back to h1 again (if its possible), can she go out of US? Is it advisable or can jeopardise her H1?

Pleae advise. Thanks in advance for your help!!


I wish you had carefully planned this earlier. I see many people in the rush to beat the H quota buying themselves a lot of trouble.  To answer your questions:
1) She would need to take her job withing 60 days. But it would also depend on her employer if he could give her the additional days off. The important factor to maintain H status is to establish an employer-employee relationship and pay check is one of the things to establish this.
2) If she is sure to get back to employment after this period(not bench)and get paid I think it should be OK taking into account my previous answer.
3) She can get back to H. The time limit is "within the last six years".
4) Your question is not specific enough for me to give an answer. But the general rule is that she cannot travel while an change of status application is pending.

Ramasamy Krishnan

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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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