Legal Question in Immigration Law in California
H1B to H4 Conversion
''Received H1B Visa starting from OCT 2006, but entered in US in July 2008 on same H1B. I was pregnant and most of the job I was getting has travel involved so I applied for leave and I became mother in Oct 2008. I wanted to start work sometime from Jan or Feb 2009 but due to market condition and small baby at home I exnteded my leave. My employer was agree and he knew that my baby need more attention so he approved leave, and until now I am on leave and I don�t have a single paystub. My H1B is expiring in Sep End 2009 so I have two choce : (a) Extend H1B with maternity reason (b) Change status to H4 as my husband is on H1 which valid for next 3 years�
To convert to H4, got to know there are 2 ways
(1) To go out of country and come back on H4 based on my husband�s H1B
(2) File for Change of Status in US without Paystub
Kindly clarify the following:
(1) If I travel to India and come back on H4, at the POE, will I be asked for recent pay-stubs since I stayed on H1B in US for a year?
(2) If I file for COS H1 to H4, will I be asked for pay-stubs?
Can I provide a letter from my employer �with company policy and leave approval along with my leave applications� for a reason of absence of paystubs.
(3) Will I able to come back to H1 status again in future (if H4 status was granted) based on current H1, because I utilized about 1 year of H1B until now? My employer is not planning for H1 extension in Sep�09 just because of current market scenario. They may want me to come back and work in future.
Please Suggest me the best way to come to H4 . Also about using H1 in future may after 1 year when I will be in position to keep my baby in playschool and work.
Note: I had H4 based on my Husband�s 1st H1 and it expired. Presently I have H1B only.
1 Answer from Attorneys
You really need more than just answers to specific questions. You need advice and representation. The initial question the consul or immigration will ask is when you entered in July, why did you have no pay stub from the start? If your intent was to not work at time of entry, your change of status or application for visa would be denied. You must show your intention to work at the time of entry as well as prior to that time even though you were not here. They will also want to know why you didn't arrive sooner. Evidence in terms of documents is needed to show intention and a closer examination of the facts and records that could exist is what will make the difference between success and failure.
Having said that, here are the answers:
1. Maybe
2. You won't necessarily be asked, but if you don't submit them or other proof of your intention to work at the time of your entry plus change of circumstance you did not anticipate right after entry, you have a problem. A letter from your employer is necessary, the wording of which is critical to success.
3. Maybe; the fact you already utilized part of your H-1 time is not relevant to this as you could recapture time you did not spend in the U.S.
Again, you really need counsel to represent you on this, otherwise it is very easy to have a problem. I would be happy to help you out if you contact me offline. Visit me at http://www.yardum-hunter.com, telephone 818 609 1953 or email me at [email protected]. Until then, please don't rely on this as legal advice.
Alice M. Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization
A �Super Lawyer� 2004 � 2009, Los Angeles Magazine
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