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 !
Re: H1 to H4 Change of Status
You can't (lawfully) reenter on an H1B, as you're out of status. If you get caught lying at the border, you'll be turned back and will likely be permanently barred from enteirng the U.S. You'll want to reenter on an H4 visa - you don't need an H4 petition, although obviously you'll need to qualify for the H4, so be prepared to document your spouse's H1 approval and valid status.
Are you stating that you were laid off (thus overstaying), or that you were benched without pay (meaning your employer should have been paying you)? With more than 90 days out-of-status, you may have triggered a period of ineligibility to reenter the U.S.
Given the apparent overstay issue, I suggest consulting an immigration lawyer.