H1 to H4 Change of Status

Hello ,

I entered USA in Dec. 2007 on H4 Visa valid till April 2010. I got my H1B approved in October 2008. I worked for few months, and due to bad economy I do not have any project since last 5 months and also no paystubs. I would like to change back to H4 status. But I understand that filing for change of status from within US might require latest paystubs. So I am planning to go to my Home country this month ( Nov 2009 ) and return in Jan 2010.

My questions are:

1) The H4 visa stamp on my passport is valid till Apr 2010. So can I simply enter USA with the same stamp and valid H1b petition from my spouse to get the new valid I-94 in H4 status?

2) Will there be any issue at Port of Entry ? Has anyone done this before ?

3) If this can be done then once I get valid I-94 with H4 status, Do I need to file any other form in addition like I-539 to be in proper status ?

Thanks in advance !

Originally Posted by anon123x456z

Hello ,

I entered USA in Dec. 2007 on H4 Visa valid till April 2010. I got my H1B approved in October 2008. I worked for few months, and due to bad economy I do not have any project since last 5 months and also no paystubs. I would like to change back to H4 status. But I understand that filing for change of status from within US might require latest paystubs. So I am planning to go to my Home country this month ( Nov 2009 ) and return in Jan 2010.

My questions are:

1) The H4 visa stamp on my passport is valid till Apr 2010. So can I simply enter USA with the same stamp and valid H1b petition from my spouse to get the new valid I-94 in H4 status?

2) Will there be any issue at Port of Entry ? Has anyone done this before ?

3) If this can be done then once I get valid I-94 with H4 status, Do I need to file any other form in addition like I-539 to be in proper status ?

Thanks in advance !

1) The H4 visa stamp on my passport is valid till Apr 2010. So can I simply enter USA with the same stamp and valid H1b petition from my spouse to get the new valid I-94 in H4 status?
Ans: Nope, you cant enter with THAT H4 visa since THAT H4 visa is invalid, the moment you got your H4-H1 change of status was approved in the year 2008. You need to apply for the change of status from H1 to H4 here in USA ( I dont think that any one asks for the pay stubs when you are moving to H4 status). You must have a copy of your spouse's valid H1 approval for this.

2) Will there be any issue at Port of Entry ? Has anyone done this before ?
Ans: At POE, your status will be shown as H1 on their computers where as your stamping shows that you are on OLD(changed) H4 status.. so, it will be an issue

3) If this can be done then once I get valid I-94 with H4 status, Do I need to file any other form in addition like I-539 to be in proper status ?
Ans: No Idea

Originally Posted by SreeSri

1) The H4 visa stamp on my passport is valid till Apr 2010. So can I simply enter USA with the same stamp and valid H1b petition from my spouse to get the new valid I-94 in H4 status?
Ans: Nope, you cant enter with THAT H4 visa since THAT H4 visa is invalid, the moment you got your H4-H1 change of status was approved in the year 2008. You need to apply for the change of status from H1 to H4 here in USA ( I dont think that any one asks for the pay stubs when you are moving to H4 status). You must have a copy of your spouse's valid H1 approval for this.

2) Will there be any issue at Port of Entry ? Has anyone done this before ?
Ans: At POE, your status will be shown as H1 on their computers where as your stamping shows that you are on OLD(changed) H4 status.. so, it will be an issue

3) If this can be done then once I get valid I-94 with H4 status, Do I need to file any other form in addition like I-539 to be in proper status ?
Ans: No Idea

I don't think what you say is right here. When a person leaves US, there is no such thing as status. Status is only applicable when you are inside US> When you leave , your status ends there (ie., when you hand over the I-94). Period.
When he/she enters a visa is what a POE office looks for and determines the status based on what visa he/she presents.
In short, a person can have a valid H1B approval, but still enter with H4 visa if they a valid H4 visa. VISA DOESN'T GET INVALID UNLESS ITS EXPIRED.
Visa and status are two different things.

OP, I am sure you can enter with your current H4 visa but am not sure if they will give the I-94 based on your spouse's H1B approval.
Please check with an immigration lawyer before you come to a conclusion. Better safe than sorry.