Reverting to H1B Status: Pros and Cons

Many people change status from H1B to H-4 and, later, consider changing back to H1B. This issue was raised in a recent session of the MurthyChat. Some of the frequent questions and misunderstandings in the ability to file and change status and the implications and restrictions are discussed here for the benefit of MurthyDotCom and MurthyBulletin readers.

Is it Wise to Change Back to H1B Status?

Question from a MurthyChat user

I converted from H1B to H-4 visa one year back. I now have received a job offer from company B. In this scenario, is it wise for me to convert back from H-4 to H1B?

Sheela Murthy’s response

The answer to this depends on what Company B will offer in terms of employment. It is permissible to accept a new employment offer and have the employer file the H1B petition with a change of status (COS) back from H-4 to H1B. Of course it is important to note that, under the latest interpretations, the USCIS states that one going from H1B to H-4 and back to H1B status cannot start working based upon filing the pending H1B COS filing. S/he must wait until the new H1B petition is approved with the I-94 card attached to the H1B approval notice, meaning that the change of status is also approved to authorize H1B employment within the United States.

Generally New H1B is Not Cap Subject

As explained in the MurthyChat, it is possible for an individual who currently holds H-4 status, but who previously held H1B status, to change back to H1B status through a new job offer. The general rule is that, assuming that the prior, cap-subject H1B was filed within the past six years and was approved and counted against the H1B cap, then the second H1B filing would not be subject to the cap. That is, when company B files the H1B petition requesting the COS from H-4, an immediate start date can be requested. There is no need to wait for the start of the fiscal year on October 1st, or to worry about cap number availability.

H1B Approval with I-94 Required to Start H1B Employment

While it is permissible in some situations to start work based on a pending H1B petition, the USCIS recently announced its position that H1B employment is not permitted in the scenario of one who is seeking a COS to H1B. Only those who are in H1B status, or (in some situations) who last held H1B status, can work based on the filing of an H1B petition. This narrow interpretation of the American Competitiveness in the 21st Century Act (AC21) H1B portability provisions was discussed in the May 13, 2011 NewsBrief, H1B Portability: A Change in USCIS Policy? Thus, the individual who seeks to revert to H1B from H-4 status must await the H1B petition and the COS approval to begin her/his H1B employment.

H-4 as Temporary Safe Harbor

There are times when an eligible individual must file a change of status to H-4, even if s/he would prefer to remain in H1B status. H-4 status can provide a safe harbor when H1B status is temporarily not an option, due to job loss or travel issues.

Many foreign nationals fear changing to H-4, as they mistakenly believe that it will create problems, particularly as related to the H1B cap, when they want to return to H1B employment. As explained here, this is not the case.

The H-4 is also a potential option for some individuals who face problems obtaining H1B visas at the consulates abroad. Given the prevalence of H1B delays and denials, some foreign nationals find it necessary to return with H-4 visas, to rejoin their families in the United States. Later, they may be able to regain H1B status, with an earlier H1B employer or with a new H1B employer.

Murthy Law Firm attorneys are on hand to help those with questions about the issues raised in this article, who may seek clarification or guidance.

Copyright © 2011, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.