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Immigration Issues/Quota Exempt for H-1B

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Question
QUESTION: Hi,

My wife has completed masters and she was working on OPT for 6 months. She has H-1 approved in 2013 quota. We are in Canada right now and will move to US after 1 Year. However, she will not be working due to pregnancy but she will start after 2 years. At that time, do you think her old H-1 will help? Can her case come under H-1 quota exempt?

If yes, Shall we do H-1 visa stamping for her current H-1?

ANSWER: Hi,

Your wife can enter the U.S. with an H1B visa stamp issued by a U.S. Consulate. She can apply for the H1B visa stamp at the Consulate anytime prior to expiration of her H1B approval notice issued by the USCIS.

However, upon entry she should be prepared to be employed by the H1B employer. If not, she will be violating her H1B status. Assuming that she is in H1B status (even for a short time) in the U.S., she will not be subject to the visa cap for the next 6 years after her entry.

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

QUESTION: Thanks for quick reply. She will not be entering in USA on H-1 B as she will not work for next 1-2 years. So she will be on H4 visa. My question is that after H4 visa, when she wants to work, will she be able to apply for H1 under quota exempt and go for stamping outside USA.

Answer
If she will be in H4 status in the U.S., in order to activate her H1B status, she will need to depart the U.S. and obtain an H1B visa stamp at a U.S. Consulate based on the unexpired H1B approval notice issued by the USCIS.

When she enters the U.S. with her H1B visa stamp, she will be in H1B status. She will not be subject to the H1B visa cap when an employer files for her extension of H1B status.

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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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