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Immigration Issues/H1B to H4 and then H1B again

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Question
QUESTION: My details are as below:

OPT - Jan-2012 to Dec-2012
H1 Approved Masters quota - Oct - 2012 to Dec - 2014
No Stamping Done

Worked on OPT till Aug-2012

Now I am in Canada and not working and I will be entering USA in Jun-2013.

I am planning not to work till Jun-2014 or more if possible due to baby.

My question is if I enter in USA on H-4 Visa then, what should I do when I want to begin the work in Jun -2014.

1. Is H1 Transfer possible to different employer ? Do I need to go for Visa Stamping? Quota Exempt possible here?
2. if Same employer who has filed H1 hires me, can I work with that company ? Again, do I need to go for Visa stamping?
3. If I don't work till Dc-2014 and let H-1 expires, Can I still use that expired H-1 to get H-1 Extension

ANSWER: Hi,

You should enter the U.S. on H4 visa stamp.

To be employed by the original sponsoring H1B employer anytime prior to Dec. 2014, you should enter the U.S. on H1B visa stamp issued by a U.S. Consulate and then you can commence employment with the original H1B employer.

Any other employer can file an H1B petition for you requesting change of status from H4 to H1B. However, unless you are in H1B status (even for a short while) with the original H1B employer, you will be subject to the visa cap again.

---------- FOLLOW-UP ----------

QUESTION: Thanks for quick reply.

1. How can we go for visa stamping without paystub from same employer?
2. Just to confirm - As I was not on H-1 for even a single day, Am I subject to Visa Cap or my new employer can file H1 anytime.

Answer
You do not need paystubs if you apply for an H1B visa stamp at a U.S. Consulate, as not being present in the U.S. (or being in another status such as F1 OPT, or H4) is a very good reason for not being paid the agreed upon salary by the H1B employer.

You will be subject to the visa cap with another employer since you never held H1B status earlier (it appears that you departed the U.S. prior to its taking effect in Oct. 2012) unless you first enter the U.S. using unexpired H1B visa stamp and are employed (even for a short while) with the original H1B employer.

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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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