H1-B is in under process and travelling back on H-4 visa in August.will there be any problem at the time of POE?

Currently I am on H4 visa and my visa will get expired on 31st September. I am planning for H1b processing for 2015 cap. I have vacation plan between July and mid of August, during the vacation I am planning to visit India.

I have following queries related to Port of entry while coming back in august.

  1.   If at that time H1-B is in under process and I am travelling back to us on H-4 visa, as I believed there should not be any problems at the time of port of entry. Am I correct?
    
  2.   If H1-B petition get approved and I am travelling back from India to USA on H4 Visa only, will there be any problem at the time of port of entry? If Yes please suggest what should be done.
    

Could anyone please answer my query? I will highly appreciate your help.

If you have applied for H1 while you are in US on H4, its called COS (Chane of Status).

If you have applied for COS, your H1 COS got approved, you will be considered on H1 status starting October 1st of 2015. Till then you are in H4 status.

Check your arrival date into US. If it falls after Oct 1st, you need H1 stamping. If you cant get H1 stamped, you need to do COS back to H4 from H1 and get H4 stamping and enter into US on H4. After coming back, you need to do COS again(under no cap limit) to H1, if you want to work on H1

First of all thanks for your valuable response. I will highly appreciate if you clear my understanding. As I understood that , If I am planning to come back nearby 15th august at that time my visa status will be still H4 no mater H1-B petition (COS) get approved or not. And there will be no stamping required if H1-B petition get approved before 15th august.
I have one more query. After 1st October will my Visa status automatically changed from H4 to H1-B.

Thanks a lot for your help.

Your understanding is correct…
AND…
Yes, if your H1 petition gets approved before that.
Essentially, you have applied for COS(from your H4 to H1) at the time of your H1 petition filing. Once your COS is approved, your H4 becomes automatically to H1. But the slight catch for Cap-H1 petitions is… that the H1 status wont be effective till the US government business year(starts on 1st of October each year) starts. In other words, Cap related H1 status starts only from the 1st of October for the year of Cap). But lets say you are in H1 status, flipped to H4 status for some reason and again you have applied for COS to H1(here this case is non cap H1), then your H1 status applicable ONE the VERY FIST DAY of your your COS approval(no need to bind for 1st Oct)…
Good luck

Thanks again for your reply.
One question came on my mind. if my petition get approved before august 15th and my COS changed automatically in this case do I need to go for H-1 stamping before flying from India(before 1st October)?
Or I can fly on same H4 on 15th august 2015? Could you please help me out regarding this.

Since you have mentioned that you are applying the COS from H4 to H1-CAP, your will be in H4 status till September end. In other words, if you are arriving in US before Oct 1st, you MUST have a valid stamping of your current H4. (but there is some slight buffer that you can go for your H1 stamping before Oct 1st but you would be in H4 status till Oct 1st.) Lets say you have never entered into US and your CAP-H1 is your VERY first US visa, you can go for stamping before Oct 1st and even you can enter into US very few days before Oct 1st but your employer must employ you on H1 only on or after Oct 1st).

Thanks a lot for the clarification.Its really nice detail explanation.

One question came on my mind regarding my visa scenario.Suppose my H1-b (with COS request)approved before 1st October.And one or two month before 1st October I came back from my home country to USA with the same H4 status as you said that my visa status will only change after 1st October only.My question is In that case do I need to do again COS for H1 ?Or it will change automatically after 1st October as I didn’t miss the deadline that is 1st October…

Please help me to overcome this situation.
Thanks
Maurani

Good question. Even though your H1 COS is approved before Oct 1st, you would not be in H1 status. Its effective date is on or after Oct1st. So, you are good.

Ok thanks a lot for the clarification. Ok so I don’t have to do the COS for H1 if I come back before 1st October it will be done automatically after 1st october…That’s a relief.So when I will come back in august I will get a revised I-94 on H4 .And if my case get selected in lottery I will get the I -94 for H1-b after 1st October only…Is that so?

Your COS H1 approval notice would have a leaf (at the bottom of the approval notice) with the I-94 validity dates on it.

I really appreciate your help.One more query.Currently I am going to submit my I-94(H4) for H1-b filing.After coming back from my home country august 2015 I will get a new I-94 .So does it impact for H1-b petition approval as I would have already submitted I-94(old H4) to USCIS with other documents.Could you please reply me on this query…
Thanks…

No issue due to your I-94 update due to your travel after petition filing.

Thanks a lot for your quick reply.
Actually today my husband talks to the attorney through which I am planning to file H1-b.But I am just scared by hearing her suggestion. She explained as follows

  1. If I do the normal process than at the time of H1-b processing USCIS will check the system and will found different I-94 .And they will void my H1-B petition.
  2. If I go through premium process than at the time of H1-b approval there won’t be any problem .But after 1st October when I will be going for SSN than they may find mismatch due to system update delay issue. Instead of reflecting the I-94 on H1 there could be reflecting the I-94 on H4 which I would get while coming back from home. So that may create problem. And again I have to apply for some amendment if this case encountered.

Really I got confused after discussing with Attorney, so please suggest what I should do in this case. Should I check with other attorney?
Thanks in advance.

Both(your H1 and H4) would have TWO DIFFERENT I94 numbers. You can take the online I-94 copy of the H1 Approval(also there will be one to the bottom of your H1 Approval I-797). Social Security Office cares about what you have submitted, not what they have seen. Dont worry about it. If you end up in that situation, you would file COS from H4 to H1 AT THAT TIME…(but it is unlikely… since it doesnt make any sense…)
Dont think about this too much… you will be safe ultimately…