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Immigration Issues/H4 visa advice needed


Hi Eileen,
I am currently on H1B visa (non-profit organization i.e. cap exempt(academic sponsored)), my wife is on H4 visa (my dependent). Her H4 visa is valid till October 2010. This year I got new H1B (for FY2010) approved (profit organization i.e. within cap (industry sponsored)) and will be joining the industry from October, now do I need to apply for my wifes status change (from my current employer H4 to new employer H4). Is H1B non-profit (cap exempt) and H1B profit organization (cap subject) are considered same class or not? Kindly suggest me the options. (I will be processing my green card after joining industry & I don't want to have problem in that because of my wife's status.)
Thanks in advance,

Eileen Chun-Fruto, Los Angeles immigration attorney writes:

Dear Sunny,

Thanks for your question.  Let me try to clarify things for you:

Cap exempt to non-cap exempt (industry sponsored H-1B) are different H-1Bs. One is counted toward the quota and the other is quota or cap-exempt.  So the USCIS does keep track of them separately.  However, I don't think your wife's H-4 changes just because *you* go from cap exempt to cap subject.  

However, I think that your wife does not need a new H4 based on simply your change of employer.  As long as you maintain H-1B status throughout the period she is on H-4 (currently until October 2010), then she is fine.  Just remember to have her extend the H-4 before October 2010 showing that you are now working for the cap subject company.

Keep in mind that this information does not constitute an attorney-client relationship, so you should still confirm this with your corporation's immigration attorney, especially if you are going to pursue a greencard.  

Good luck.  

Eileen Chun-Fruto  

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Eileen Chun-Fruto


I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).


I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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