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Immigration Issues/H4 to H1B and consular processing vs. COS

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Question
I have a Question.

I want to apply for H1 this year. I am planning to go to
India Dec 2009. I am planning to come back in Feb 2010.

Now between Oct 2009 and Feb 2010, I definitely won't have
job. I was planning to find a job after I come back.

Now in this case, how should I file my taxes?
Do I need to get my SSN before I go to India?
Can I somehow come back on H4 this time, and then convert
to H1 next year.

I am just confused. I am not sure how it works. please
help.

Answer
Hi,

I will assume that you are currently in H4 visa status.

Your employer will sign and file the H1B petition for you. The petition should be filed only if the employer actually plans to eventually employ you. If the employer does not plan to employ you starting October 01, 2009 (due to visa cap issues for initial H1B filing, the petition should be filed at the beginning of April with employment start date of October 01, 2009), the petition should request "consular processing" as opposed to change of status (COS). With consular processing requested, your H1B status will be activated only if you apply for and receive H1B visa stamp from a U.S. Consulate abroad based on H1B approval issued by the USCIS. After entry to the U.S. using H1B visa stamp, you should start working for the H1B employer in order to avoid violating H1B status. You are responsible for paying all taxes.

Regards,
Ajay K. Arora, Esq.
www.H1B1.com

Immigration Issues

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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