H1b approved without I-94, implication on H4 & COS H1 to

[laxmitp]

I am on H4 dependant visa status. My husband is on H1B status and recently changed the job. We have been living in United States for the past few years. For the most of the time he worked in a full time job directly for a company either in the R&D or Systems Engineering Dept as a senior architect. This issue happened during the 2nd week of April 2010.

The new company did my husband’s Premium process with (first LCA and I-129 Premium process) and he started working as a full time R&D/Engineering employee. After two weeks, my husband’s H1B got approved without I-94 and he had been referred to US consular process in India/home country for H-1B stamping at Chennai, India. My husband is leaving this week-end to Chennai to get the stamping. He got all the supporting documentation (continued letter of employment, employer letter addressed to US consulate, his current pay stub for the two weeks he had worked). The company and HR is ready to support him and kept my husband on leave of absence from now to the time he will come back from Chennai, India to US after getting H1-B visa stamp on his passport. His earlier h1B visa has un-expired (not expired), valid I-94 with validity of another 1.5 years (just to let you know that it was not the case of not having valid/current I-94, it was the case of changing jobs and the USCIS had seen the gap of 33 days by the time the I-129 receipt got issued. With new process, LCA was done about 10 days earlier to filing I-129 by premium process. After that, Attorney filed I-129 in premium process). As earlier company quickly cancelled my husband H1B while the pay role was running, soon after my husband mentioned them about his plans of changing job and by the time the USCIS was issuing H1B approval for the new company, they had observed the earlier companies H1b visa cancellation logged in the system. I think now these things appear in US CIS system very fast (don’t know how fast the H1B cancellation takes once the earlier company sent the letter). So, US CIS approved H1B for the current company but denied extension of status and referred to consular process in home country, India (at Chennai US consulate)

Now my questions are

What are the precautions and action items my husband should take (he is planning to leave around 19th April)
What about my H4, I just returned from India trip and got my I-94 stamp/card on my passport valid till 2011 end.
Do I also need to step out of US and come back? But my H4 stamping on visa is still valid till end of 2010 and my I-94 card on my passport is valid till end of 2011. During my recent India trip, I didn’t go to Chennai consulate for new visa stamp, I just came back to US and they issued me a new I-94. If next time I travel it is going to be the same as earlier, as long as my visa stamp on passport is not expired. How does this make difference?
In case it is important that I also step out of US and come back, can I do it, once my husband is back in US, he is planning to be back in US, after getting H-1B visa at Chennai, within 10 days
I am also planning to work. As I have approved H-1B I-797A notice issued to me in 2007 quota. It was issued to me with out I-94, so the change of status was not approved (even though I was in US and had a valid I-94, the US CIS thought I could be in India. I think they looked at my I-94 which was just expired in May 2007, but after that I had another H4 notice with I-94 valid till end of 2011. I was never out of status or with an expired I-94 in United States).
My idea is this: as the economy is improving, get a job and then ask either the new employee or the earlier employee (consulting company) to apply for H4 to H1B change of status. Until, then continue in H4 status. Is it a proper thing or the right thing to do? What are the complexities and risks involved in this? Is that OK even though I got H1B approved in 2007 quota, as the change of status not happened, I have been till today continuing in H4 status? How much time I have to get a job and change my status from H4 to H-1B
Does whatever happened to my husband now, will have any impact or effect on my situation or my ability to change my status from H4 to h1b in near future?

Could anyone please tell me the implications in my case? Please advice and really appreciate the timely support. We are ready to invest time and do our home work, if we can improve our situation in any manner. At this point, I know my case, but don’t have a real good understanding of the implications and how to come out of it smoothly. Either my husband or myself never had any issue with Visa or RFE’s in the past either during H-1b transfers or in getting I-94 with I-797A approval notice, this was the first issue we have faced in all these years.

Thanks and regards
Sri

[saunderscolin15]

Hi, it is really difficult for me to tell or suggest you all the things on this forum. You should consult a lawyer, who can suggest you all the things and how to be prepared for the visa interview. I suppose the problem is those 33 days. I think this is not a big issue, consulars may or may not ask him some questions regarding this but this thing is can not be a reason for the rejection.
USAFIS
Immigration Consultancy