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H4 Stamping While H1b Visa Application Is Still In Admin Processing

Discussion in 'Nonimmigrant Visa Applications' started by rakeshl, Jul 14, 2015.

  1. rakeshl

    rakeshl New Member

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    Hi Ron,
    I am on H1 and My wife was on H4 status.(I-94 valid till 09-30-2014)
    Her (Future) employer filed H1 petition for her(In 2015 quota) and it got approved on 09-23-2014 without Change of Status.(We got the approved petition without I-94 on 09-29-2014)
    To maintain the status, we have filed I-539 for H4 status extension on 09-29-2014.
    My wife left U.S. on 04-22-2015. Her I-539 application was still pending approval.
    On 04-26-2015, My wife attended visa interview for her H1B visa and her visa application is in Administrative processing . She got 221(g) white slip.
    My wife's H1B visa application is still in Administrative processing. So my wife is planning to go for H4 stamping and come to US. We have below questions, could you please clarify on these?
    Can she go for H4 stamping as H1B visa application is still in Administrative processing?
    What will happen to H1B visa application if she goes for H4 stamping?
    Can wife's employer can file status change (H4 to H1) for her after she enters US?

    Thank you in advance for your assistance.

    Regards,
    Rakesh
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    She should be able to get an H4. They may, however, ask her to withdraw her H1B application first.
     
  3. rakeshl

    rakeshl New Member

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    Thank you for your response Ron!
    Could you please let me know on what will happen to the H1B petition and What do her employer need to file (amendment or new H1B petition) ?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Unless the employer or the USCIS revokes it, the petition will remain valid. To file an amendment, the employer has to file a new LCA and a new I-129 petition.
     
  5. rakeshl

    rakeshl New Member

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    Thank you for your response Ron!
    If the petition is revoked, does my wife come under non exempt?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If she was issued a visa or held H1B status, she will remain cap exempt.
     
  7. rakeshl

    rakeshl New Member

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    She was never on H1B status before. Can you please let us know if she comes under cap exempt or not?
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If the petition is revoked, she is subject to the cap. If not, then she is exempt.
     
  9. rakeshl

    rakeshl New Member

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    Ron,
    Thanks for your quick response.
    What will happen to the H1B petition if we withdraw the H1B visa application and goes for H4 visa stamping?
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Nothing. It will remain valid unless revoked by the USCIS or the employer.
     

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