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H4 ---> H1B and Consular Processing

Discussion in 'NIV applications in India' started by Hari0808, Jul 4, 2013.

  1. Hari0808

    Hari0808 Junior Member

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    Hello Ron, Your forum is a best place for Non immigrantion issue, its great to have you back. Here is my case: My wife is on H4 with me in USA , her VISA EXPIRED ON 7-MAR 2013 & currently on I94 valid till 7-Mar-2016. One employer sponcered H1B Visa , her application got selected in the draw and her case is under Initial review. She needs to go to India in Aug-2013. 1) I heard , her enployer can change the H1B processing to Consular Processing(CP) ? What does that mean? When should the procesing be changed to CP, Is it before going to India/after reaching India? If it is prior, How many days prior to the travel her H1B has to be changed to CP? What is the processing time for CP? What are the chances of approval for CP? 2) If her H1B is approved before Aug'13, Does she needs to get H1B stamping in India to travel back to US ? OR Can she travel back with new H4 stamping , what will happen to approved H1B in this case? 3) If her H1B is not approved before Aug'13 and If she travel and come back on H4 stamping, what will happen to H1B processing? Thanks in Advance for your help and it is very much appreciated. Regards, Hari
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Her employer doesn't need to do anything. If the petition is approved, she may apply for an H1B visa only after September 1st.
     
  3. Hari0808

    Hari0808 Junior Member

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    Thanks Ron, What if her H1B petition is not approved, Will her H1 petition which is in processing become void if she travel to India?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I assume that those are two separate questions. If her H1B petition is denied, then she will have to return as an H4. If she doesn't have a currently valid visa, then she will need to get one. If she leaves the U.S. while her change of status is pending, the regulations provide that it will be deemed abandoned automatically. Similarly, if she leaves after it is approved, she will need a new H1B visa in order to return as an H1B.
     
  5. Hari0808

    Hari0808 Junior Member

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    She is on I94 currently.if she leaves after her H1B change of status is approved, can she return to U.S on H4 visa before september and will her approved h1b status still be effective from october?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    There are different opinions on this. My feeling is that the regulations are quite clear: if you leave the U.S., any pending or granted change of status is void.
     
  7. Hari0808

    Hari0808 Junior Member

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    Thanks you Ron, Can her change of status be changed to Consular Processing when the petition is still pending? If yes, Can you please explain the procedure?
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If the petition has not yet been adjudicated, then the employer can write to the USCIS and amend it for consular notification. Hopefully, the employer sent a second complete copy of the petition when the original was filed? Unless you send a PIMS copy, the USCIS will not forward the file to the Department of State's Kentucky Consular Center for entry into the PIMS system.
     
  9. Hari0808

    Hari0808 Junior Member

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    Ron, thanks a lot for the details, those are very helpful. My wife's employer is saying that it will not be a problem if she comes back in two weeks time. Worst case will be a RFE saying that the beneficiary is outside the country, which can be responded with the new I94. Is this the way how it works? We are so confused, pls provide your valuable advise. Thanks in Advance.
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If she leaves the U.S., her application will be deemed abandoned automatically.
     
  11. Elmadan

    Elmadan New Member

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    Hi Ron,
    I need your guidance. I am getting married to an H!B visa holder but I am an experienced skilled worker and do not wish to waste my skills by going to the US on an H1B visa.Is there a way that I can directly apply for an H1B visa or is there any other visa that can permit me to use my education and skills without making me sit idle ?

    I desperately need a way out because this is causing lot of issues for my marriage as its not possible to leave India when I have a job and all the skills in IT and aspire to grow in my career. My fiance is an H1B visa holder and it leaves us with no option but for me to go as a dependent which hurts as I worked very hard in university to get my degree and pay for it, I put it lot of efforts in my career for the past 3 years to attain the knowledge of more than my experience.Please help me with your guidance!

    Thank you very much!
     

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