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Immigration Issues/OPT TO H1 AND THEN H4 ..QUOTA EXEMPT

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QUESTION: HI,

My wife was working on OPT and she got H1 Approved in 2013 quota. We are here in Canada becuase of my job transfer. We should be back in US after 6 months.

1. Do you recommend to go for her H1 Visa stamping right now? She is not planning to work for another 1.5 years.

2. If she gets for H1 Stamping, and she enters on H4 visa after 6 months as she is not planning to work, Will it Cancel her H1?

3. Also, After 1.5 years, if she wants to work, Will her H1 will be the quota exempt? If yes, She has to go for H1 Stamping before start working or she cna use old H1 stamping that she had. Assumming she will be working for Same employer.

ANSWER: 1) May not go for stamping right now if not planning to work;
2) If she is currently on H4 and gets H1 stamping the H4 status terminates automatically.  

Best wishes,

Note: Our main are of practice is U.S. Immigration Law with focus on Removal, Deportation, Asylum, Employment Visas, Non-immigrant Visas (H1B/L1/J1), Immigration Bond matters, Criminal Immigration and other complex Immigration matters and related Federal Court litigation.  This communication, though, does not constitute “legal advice”, nor does it form an attorney-client relationship.  

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

QUESTION: Firstly, she is not in US right now. I think my question is mis-interpreted.

We are in Canada and She has H1 approved. We will be back in US after 6 months. So, could you please take a look at question again and reply. Really appreciate your help

Answer
Your question is not misinterpreted.  I answered the queries as put to me. You asked:
1)  Do you recommend to go for her H1 Visa stamping right now? She is not planning to work for another 1.5 years.
My answer - May not go for stamping right now if not planning to work;
she may go for stamping close to her entry and start work later; however, if she is not planning to work fro some time (1.5 years) she may have to show good cause/reason of not doing so.

2) If she gets for H1 Stamping, and she enters on H4 visa after 6 months as she is not planning to work, Will it Cancel her H1?
My answer - If she is currently on H4 and gets H1 stamping the H4 status terminates automatically.  

3) Also, After 1.5 years, if she wants to work, Will her H1 will be the quota exempt? If yes, She has to go for H1 Stamping before start working or she cna use old H1 stamping that she had. Assumming she will be working for Same employer.
My answer - Please see above.  

However, since your question is case specific for it to be answered meaningfully on a forum, I recommend consulting or hiring an immigration attorney on a retainer basis to provide on-going support as undoubtedly it will be needed since you are delving into a murky area of the law.

Best wishes,

Note: Our main are of practice is U.S. Immigration Law with focus on Removal, Deportation, Asylum, Employment Visas, Non-immigrant Visas (H1B/L1/J1), Immigration Bond matters, Criminal Immigration and other complex Immigration matters and related Federal Court litigation.  This communication, though, does not constitute “legal advice”, nor does it form an attorney-client relationship.  

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AJAY SINGH

Expertise

Questions regarding Immigration to United States, including Removal/Deportation Proceedings, Asylum; Green Card through Family (Fiance/ee Visa, Spouse, Children, Parents, Siblings); Green Card through Employment (Labor Certification - PERM, Extra Ordinary Ability - EB1, Religious/Entrepreneur - EB4/EB5); Non-Immigrant Visas - H1B, L1, F & M, J1, J1 waiver, Humanitarian relief (Cancellation of Removal, Prosecutorial Discretion, TPS, Dream Act); Hardship Waiver (I-601/212) etc., are welcome.

Experience

Dealing with clients seeking immigration help since year 2001. Main area of practice is Immigration Law.

Organizations
Member - AILA. Bar Council of India.

Education/Credentials
LL.M - Benjamin N. Cardozo School of Law, NY. LL.B - Campus Law Center, University of Delhi, New Delhi.

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