Immigration Issues/H4 to H1B

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Question
Currently, I and my family lived in India. My wife is working for a software firm and is expected to travel to US in May or June on H-1 visa.
1) My wife's firm has applied H1 for her in April 2013 in an out of cap quota under premium processing. . So we are expecting that she will get the approval in this month and to go to stamping in May tobe able to travel to US in June first week. I would be applying for H4 visa along with her.

2) I would be also be applying for a fresh H1 under normal processing through an employer in US ithis month.

3) I will be planning to travel to US with my wife, on H-4 visa, in May last week or June first week (while my H-1 application process pending in US). The reason I'm applying H-1 for myself in April, while in India, is because I'm not sure if the quota will be filled up or not by the time I reach US on H-4. So, I don't want to miss out on H-1 application so applying from India in April itself.

4) After reaching US on H-4 visa, if my H-1 application gets approved (lets say in Sep-Oct), will i or my employer be able to apply for change of status (from H-4 to H1) and get a new I-94 card in US and I can start working or do I have to come back to India for H-1 visa stamping and travel back to US?

5) if for any reason my H1 application gets approved while we are in India only (before my wife's H1 approval), is it possible that i wait for my wife's H1 approval so that i can travel to US on H4 visa and then convert from H4 to H1? Or do i have to certainly go for stamping in India only?

Please let me know what my options are. Thank you for your valuable time.

Please advise. Thank you!

Answer
Hi,

The visa cap is likely to be reached by April 05, 2013, and therefore a cap-subject H1B petition filed after that date will likely not be included within the visa cap.

In any event (hypothetically anyway, if the cap is not reached as early as anticipated and the employer manages to file your H1B petition on time), it is OK for you to enter on H4 visa stamp while having a pending H1B petition with the USCIS, esp. since the validity date on an H1B approval notice will be Oct. 01, 2013. Thus, for an H1B petition filed by the employer prior to your entry to the U.S. in H4 visa status, the H1B petition will be approved with "consular processing". To activate H1B status, you will be required to depart the U.S. and obtain H1B visa stamp at a U.S. Consulate (in most cases in your home country), and enter the U.S. using the H1B visa stamp.

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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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