Common Mistake When Filing from H-4 to H1B
Posted Jun 10, 2005
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Through the free services we at The Law Office of Sheela Murthy offer to the immigrant community (the MurthyChat, the MurthyForum, the MurthyBulletin, and MurthyDotCom) we regularly address common questions and point out mistakes often made in the immigration law context. If a reader has made the mistake explained in this article, s/he should contact a qualified immigration attorney without delay. The problem at issue arises after a person is in the United States in H-4 status and later decides to work, having found an H1B employer. The H1B employer then files the necessary petition with the USCIS to change the individual's status to H1B. If this is approved, the person then will be in H1B status. If that person wants or needs to revert to H-4 status, this is when mistakes are often made.
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Status Does Not Automatically Revert to Earlier H-4 Status
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In this situation, if one who has obtained an H1B approval, wishes to change back to H-4 status from within the U.S., s/he must file an application to change the status back to H-4 with the USCIS. One cannot simply stop working on the H1B and be automatically reverted to the former H-4 status. This is true even if the primary spouse is maintaining H1B status and the former H-4 spouse would otherwise be fully eligible for H-4 status. If the individual stops working based on the mistaken assumption that s/he can just reclaim the earlier H-4 status, that person is then be considered out of status. S/he would be an out-of-status former H1B, not an in-status H-4.
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While this information addresses issues pertaining to H-4s and H1Bs, as these are the common categories in which we see this problem, it applies to the other nonimmigrant categories, as well. It is best to remember an unofficial, general immigration principle that most things in immigration law are not automatic. Those things that occur by function of law, without a request by the individual or an employer, are usually not immigration benefits. That is, what happens automatically is usually not something desirable. Whenever there is any question about whether or not it is necessary to file something, it is best to consult a qualified immigration attorney before taking any action that could potentially change one's legal status in the United States.
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How Can I Fix this Problem of Being Out of Status Now?
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If one has stopped working with the H1B employer, incorrectly presuming that s/he has reverted to the earlier, unexpired H-4 status, one is actually an out-of-status H1B. The next question is how to fix the problem and get back into status. If one cannot show maintenance of status, one will generally not be able to obtain a change or extension of status within the U.S. from the USCIS. It is sometimes possible to obtain a backdated H-4 approval, known as nunc pro tunc approval, if the USCIS uses its discretion to approve such a case. This is a special request, however, and is purely discretionary relief that is not often granted.
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It is also sometimes possible and necessary to travel abroad and reenter, sometimes after obtaining a new H-4 visa in the passport, if an earlier H-4 visa stamp has already expired. Of course, if the H-4 visa is needed, the issuance of this visa is dependant upon approval of the H-4 visa stamp at the consulate. Additionally, if one has accrued more than 180 days of unlawful presence, after the expiration date of the I-94 card, (not just being out of status but being unlawfully present), the individual would face a three- or ten-year bar on reentry to the United States following travel abroad. Thus, proper legal guidance is needed to determine the best possible route in attempting to remedy the problem.
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Conclusion
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Obviously, these are complex issues and one should consult with a knowledgeable and qualified immigration lawyer for guidance and not rely on information from friends and acquaintances who may be well meaning, but may not understand the exceptions or nuances in a particular case.
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We at The Law Office of Sheela Murthy are pleased to share this commonly misunderstood situation with our MurthyDotCom and MurthyBulletin readers to help they avoid the potential dire consequences.