Common Transitioning Error: H-4 to H1B, Back to H-4

The Murthy Law Firm regularly addresses common errors and problem areas related to immigration, to alert MurthyDotCom readers before mistakes are made. This article is for individuals who are the beneficiaries of a change of status (COS) from H-4 to H1B. The issue arises after the potential H1B employer obtains approval of the necessary petition requesting a COS of the individual from H-4 to H1B status. Discussed here are errors commonly made if one wants or needs to revert to H-4 status.

H1B Status Effective From I-94 Approval Date

The typical scenario is an individual for whom an employer has obtained an H1B approval with a COS, effective October 1st. For various reasons, such an individual may wish to remain in H-4 status, rather than carrying through with the H1B employment. Sometimes, the individual may be anxious to start work, but the employer may no longer need his/her services. Or, the individual’s health may prevent her/him from working for the H1B employer. Regardless, it is important to understand that the change of status, once approved, generally occurs as of the effective date (usually October 1st), as listed on the I-94 card accompanying the H1B approval notice.

Status Does Not Automatically Revert to Earlier H-4 Status

If one has obtained an H1B change-of-status approval and wishes to change back to H-4 status from within the United States, s/he typically must file an application to change the status back to H-4 with the U.S. Citizenship and Immigration Services (USCIS). One cannot simply stop working (or never start working) for the H1B employer and automatically revert 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 individual is then considered to have fallen out of status.

Rule Applies to Other NIV Changes in Status

While this information addresses concerns pertaining to H-4s and H1Bs, as these are the common categories in which we see this problem, it applies to the other nonimmigrant visa (NIV) 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 it is necessary to file something, it is best to consult a qualified immigration attorney before taking any action that potentially could change one’s legal status in the United States.

Potential Options to Solve Problem

If one has an upcoming H1B change of status and does not wish to accept that employment, or is getting indications from the employer that the job may no longer be available, the matter cannot be ignored. The solution depends upon the exact circumstances. It may become necessary to file a new COS application, travel abroad and reenter in the desired status, or file an application with a nunc pro tunc request. Again, however, individuals facing this dilemma are strongly encouraged to speak to a qualified attorney who can evaluate the specifics of their situations and advise them accordingly.

Request a Discretionary Nunc Pro Tunc

Generally, if an applicant cannot show maintenance of status, s/he will not be able to obtain a change or extension of status from the USCIS within the United States. However, it is sometimes possible to gain this benefit through an exception to this general rule, known as nunc pro tunc (NPT). The USCIS typically will approve such a request only under special circumstances, and this form of purely discretionary relief is not routinely granted.

Travel Abroad and Reenter in Desired Status

If it is necessary to travel abroad and reenter in the desired status, the individual may have to first obtain a new H-4 visa “stamp.” Of course, if an H-4 visa is needed, the issuance of this visa is dependent upon approval of the H-4 visa application at the consulate. It is important to act quickly in these matters, but not before acquiring professional guidance regarding the impact of such a departure. There are complex nuances in immigration law as to whether a status violation is categorized as unlawful presence. Individuals who have accrued more than 180 days of unlawful presence face a three- or ten-year legal bar on reentry to the United States following travel abroad. Thus, proper legal advice is needed to determine the best possible route to remedying the problem.

Conclusion

The difficulties addressed in this article, while common, are largely avoidable if one remains informed and is proactive. We at the Murthy Law Firm alert our readers to this in the hopes that they will be watchful of this pitfall, or at least recognize any such error quickly enough to prevent long-term negative consequences. Those who require specific guidance on this or any related immigration matter are invited to contact the attorneys at the Murthy Law Firm for consultations and guidance to better understand the risks and potential options.

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