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H4 visa to H1B visa transfer for 2011. Impact of New H1B rules on H4 to H1B visa conversion 2011 Quota
I was asked by one of our readers about options for H4 to H1B visa conversion as she was planning on applying for H1B visa petition for 2011 quota. The impact of new rules with H1B employer-employee relationship have a significant impact on the all those qualified H4 visa holders who would like to apply for H1B visa for 2011 quota. This article will focus on some of the impact on H4 visa holders. If you do not know new rules. First Read the articles :
- Flash News : Additional requirements for filing H1B Visa petition for 2011. USICS releases additional Employer Employee relations Memorandum
- New H1B visa petition filing guidelines and requirements for 2011 quota and New guidelines for H1B visa Extensions
H4 Visa holders general situation :
Typically, significant number of the H4 visa holders are well educated with B.Tech degrees and some of them probably would have worked in Indian IT Consulting companies like Infosys, Cognizant, TCS, Wipro, HP, IBM etc. for few years anywhere from 1 to 5 years. Once these well qualified professional women marry H1B visa holders working in US, they come to US on H4 visa and back of their minds, they are thinking : “After I go to US, I am going to apply for H1B visa and work in US along with my husband ”. Also, the guys are thinking too, “I should apply for H1B visa for my wife in the upcoming H1B visa quota”. Typically, this used to work out very well until recent years where there has been recession hit and significant job losses all over US. In general, it is very hard for someone who used to work full time as a professional to sit at home all day and do nothing. It is just frustrating and in fact waste of time too.
New H1B visa 2011 rules impact on H4 Visa holders:
Well, with the new H1b rules memorandum and additional requirements for H1B visa petition, there is a big question prevailing among the H4 visa holders, “How to find a good H1B visa sponsor who can fulfill the new rules ? ”. With the new rules the small desi consultancies who used to H1B visa sponsorship are no longer in good shape to file a valid H1B visa petition. I have already written a section about this in previous post, where I explain “What does New H1B rules for 2011 Quota mean to all the Small IT Consulting Companies ?” . Anyways, bottom line, your options for finding prospective H1B visa sponsors are very limited. I am sure the husbands on H1B visa are looking all around for any contacts to find a good employer. Few tips for looking for employers.
What/How to look in an employer to sponsoring H1B visa for 2011 quota:
- You really want to look for companies of good size, I would say at least 150 or more.
- The most important thing is to look if they have project implementations in US and they have employees working on site and reporting to the consulting company and not to client. They must have few implementations. It is very important for your Visa approval.
- As always, you can verify the size of the company and other details like denials, etc. Check the article: Things to verify before you choose employer for H1B visa .
- One of the avenues is to look at the big outsourcing concept consulting companies like Infosys, TCS, Cognizant, HP, Accenture, etc. There are many outsourced projects and because H4 visa holders have some work experience, they can cash that in and build a strong resume. It would be an ideal option if you can find a job in the big IT outsourcing Consulting companies.
- Another option is to look for Full time job at any American company. If you can dictate the start date with the company to have it from October 1st, then you can adopt this option. It might not be possible. Read the below for more likely situation based on cap numbers.
If H1B quota for 2011 lasts until December 2010 :
Let’s say, hypothetical situation (cannot count on this, but something to think about), the H1B visa quota lasts till December 2010. It does not even be till December, even the H1B quota lasts until October 2010, there is another idea. You can start looking for Job in any American Companies. I mean, look for a FULL Time job in any American company. You are not limited to consulting companies. Based on the cap count, you can see the situation and may be start looking for Job from August and you might get an offer in September, they can apply for Visa. Ideally, it takes 2 months or so for getting full visa approval. It sometimes comes early too based on how fast USCIS Process the H1B visa petitions. Anyways, you may start looking for job from June too and may get an offer in August and by the time the visa process is done you are already there in October 2010.
It is a very hard situation for all the H4 visa holders and I know quite few of my friends who recently got married and are planning on H1B visa for their wife, but having a hard time with new rules and recession. Well, it is what it is, we cannot change much. Just try harder… Good Luck!
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Hi Saurabh,
Quick question.
My employer is a major Indian IT company and currently deputed to USA on H1B and working with Client A. I happen to see a requirement in Client A which matches my profile and interested to apply for it. I reviewed the Master service agreement b/w my employer and Client A and it says, neither the employer , nor the client can solicit or approach the employees of either company. But, if a job opening is made public, then its not a violation. So, can i join Client A as this job is made public and available in their website and other job sites.
Also, i had signed a deputation letter in India before travelling to USA, which says that i cannot join the Client A until 6 months nor i can quit at USA. I know for h1b, this does not hold good. But, wanted to confirm before i take any step. Could you please confirm?
H1B Change,
You may be able to apply for A’s position as it was publicly published. Have you completed 6 months w/ A?
Few things:
- although you may not be impacted by the non-solicitation contract, you should still get it reviewed by a labor attorney to be sure
- the company cannot do anything to your H-1 w/ regard to leaving them in US, but they can go after you outside US. Does the letter mention what needs to be done in case you resign in US?
Hi,
I am with Employer A and was looking to change my job and had applied for a job with Employer B, 4 months back. I had not received a call yet and meantime, through another employer ( apparently a Consultancy ) said will arrange an interview with that employer B and will offer a h1b transfer with a position as a contractor with Employer B.
Later, i received a call from Employer B and after couple of interviews, the HR of Employer B offered a permanent position saying your resume was already in our database as i had applied 4 months back. When i decdied to accept that offer, i was threatened by the consultancy that i cannot accept that offer as he had referred me to that employer B. To this, when i decided to ignore the consultancy and asked them ( consultancy & employer B ) to work out internally, he has been threatening to send a legal notice to me and also cause trouble to my H1b petiton and probably a deport and also any possible problem.
When i consulted the HR of employer B, they said , i am free to choose any employer and law does not stop me in doing so. But, they will not interfere as it should be my decision.
Could you please suggest me what should i be doing. My experience with this consultancy defenitely is not fruitful and have no more trust on it. Would there be any impact on my H1b petition or would the consultancy cause any harm to me if i accept the offer of Employer B.
H1B Job Query,
Did you sign any document w/ the consultancy? B has enough documents to show that you were in their system even before consulting company came into picture.
The consulting company cannot deport you for this. The maximum they can do is sue you for damages but you have a good chance of winning as B’s system will show when you got in touch w/ them. You can also talk to a labor attorney about this.
Hi Saurabh,
Thanks for the response.
There has been no document signed so far. Also, during my interviews with Employer B, i had informed the consultancy that Employer B is going to hire me as permanent employee. During that time, they kept on saying you can work with us instead of Employer B. When the offer was finalized by Employer B, now the consultancy is making an issue.
And, yes Employer B has information that my resume was available in their database before the consultancy had sent my resume to employer B. But, its might also be true that interview was probably scheduled after consultancy forwarded the resume. But, i have not signed any document and i have few email conversations giving status of interview with employer B and consultancy trying to convince me to stay with them. ( it was the first ever interview they had arranged too )
H1B Job Query,
As you didn’t sign any document w/ B, you should be fine. Still I will suggest talking to a labor attorney and discuss the case.
Currently I am working in IT company(INDIA) and have filled H1B Visa for this year.I am waiting for the lottery result.
I also have an H4 Visa as my husband will be going onsite in June 2014,I am planning to go with him on leave.
Therefore I will be in USA on H4B and will also be waiting for my H1B Visa approval from my Current company.
1.If I get reciept number in June and since I will be in USA in June ,can I change my employer in USA with reciept number only.
and then wait for approval for H1B.
2.If not then I need to wait for my H1B approval from my Indian Employer ,once approved then change employer .
Hi Saurabh,
Can you please reply.I need to take some decision.
Shaina: You will have to wait till the approval of H1B for changing employers… Receipt cannot be taken as approval. You may change employer before Oct without payslips and if in case approval comes late that is after oct you will need payslips for approval then…. Hope this helps…
Shaina,
It’s #2. Once approved, you are considered cap-exempt for next 6 years and can transfer to another employer. Until then you are not cap-exempt.
Hi saurabh,
This is ankur,
I still not received any confirmation after the lottery oh h1 that whether selected or rejected. It is quite late also. Can I say that my case is rejected that’s why my employer didn’t get any info. Please help me
You should check with your Employer. All of us can just guess that it might have not been selected or delay in communication.
Yes that’s the confusion. Is there any kind of last date of receiving the approval receipt. I heard that even if get rejected then also we receive rejection letter.
I don’t know last date of receiving any confirmation.please let me know if anyone aware of it.
No last date as such. Your employer / attorney should have that info
hi…. even my employer is waiting for the reciept. he is not clearing me on this. plase if anybody know that its already 15 may, can i still hope for the approval in lottery or its clear that i m not selected. pleae help me as i lost all hopes.
I am traveling on H1 & my wife on h4.
Meanwhile her employer has filed h1 for 2014 quota.
1. Can she change h4 to h1 from US itself once the petition is approved.
2. Can she change the employer using approved petition with receipt no only.
hi saurabh,
plz reply . its urgent!!!!
Tarun,
1. Yes
2. Yes. If she changes employer prior to Oct, then no payslips are required. After Oct, she will require payslips for her H-1 term.
Thanks saurabh,
1. But if her petition is approved after OCT???
2. She can transfer h1 before OCT without approval notice with receipt no only.
Tarun,
1. She can file COS from H-4 to H-1 once the petition is approved. If this is filed prior to Oct, then COS will be approved w/ start date of Oct 1. If this is filed after Oct 1, then COS will be approved w/ actual date of approval.
2. Its good to have approval notice. If not, she can use the receipt number and print out of online status showing that the status is approved.
Hi Saurabh & others,
I am currrently on H1b which will expire in 6 months. Also, i am looking for another job/employer. Is there a standard to-do list or best practices which will help me on a smooth H1b Transfer from current employer to a possible future Employer??
Disha,
This is what comes to my mind:
1. Make sure the new employer is a good one
2. Make sure you are maintaining legal status on your current H-1 and have all payslips, W-2s ready
3. Keep your resume and experience letters, marksheets, degrees etc up to date
4. It helps if the new employer has an attorney to guide you through the process
hi saurabh,
I am currently holding the h1b visa.. and i want to bring my wife to USA with H4 visa, my wife had 7+ years of experience in MNC companies, will it be possible to apply h1 visa for her.
please advice?
Raj,
H-1 needs to be applied before the cap get exhausted. Prediction is that it may not survive more than few weeks this time. So H-1 can be applied but you may be out of time if you still haven’t finalized the employer yet. The H-1 can be applied either after she has entered US on H-4, or even before she travels to US on H-4 (in both cases it has to be applied after April 1).
Hi Saurabh,
Hope you are doing well!
My husband is in US in H1B and I am also planning to go there. I got a consultant who is ready to apply my H1 as I am on H4. He will apply my H1 on April 1st however at that time I will be on India and will reach in May starting.
Is this fine COS after I reach there, is this create any problem in my H1 approval.
Please advise me.
Nitu,
You can file COS once your H-1 petition gets approved. Another thing your employer can try is to file for COS if RFE is issued (as part of RFE response).
Hi All,
Need some advise URGENTLY.
My wife is with me in US on H4. I need to get her H1 filed from here so need some advise.
I have contacted some consultancy who are ready to sponsor H1B for her but asking for certain amount. I found 5-6 of them and all need Visa filing fee to be paid by us. That’s oK but my problem is:
Once she has H1B approved, then they will search for some company where they can deploy you. And they will not pay you anything if you are on Bench. Now the question here is suppose she is on Bench for 3 months or so…then also we need to pay tax from our pocket which is again a catch…because you wouldn’t be getting salary for that time.
So i need your advise / experience on this part like is there any way out of it or something. Should i go ahead for applying her H1B or should i not. I am confused.
Regards!!!
Hi Experts…
Need advise on this urgently. Please respond.
I am stuck in between…
Sonu,
Once she moves to H-1, she will have to get paid regularly in order to maintain status. Even during the processing phase, USCIS may ask about client/project details and may not approve it w/o it. So its better to go through an employer who can provide all documents required for stamping and hence have better chance of approval.
Hi,
I have 4.5 years of IT experience in India and I am in H4 VISA rite now with my husband. He is planning to apply H1 for me. I have a question,
Wat happens once I get started working in H1, and if there is a situation that I couldn’t work for say 3 months. What are the options I have, Can I continue in H4 or shd I move back to India, what will happen to my h1 status ?
Ambika,
Your husband cannot apply H-1 for you – only an employer can do that.
Once you start working on H-1, and want to take a break of few months then you need to file COS from H-1 to H-4. Once approved, you will be on H-4 visa status. You can go back to H-1 by filing H-1 COS. You don’t need to go through the cap again.
If the few months break is due to pregnancy then you can remain on H-1 and return to join on H-1.
Thanks Saurabh.
Yes my husband is looking for a consultancy to apply H1 VISA.
I have another question, what is the maximum period I can continue in H1 without getting payroll generated.
Thanks,
Ambika
Ambika,
A person always need to get paid on H-1. If the person doesn’t get paid then they start accumulating out of status.
What if the person doesn’t apply for COS from H4 to H1, but applies for H1 independently. In that case, I guess as long as you don’t convert to H1 fully, you may still be ok without payroll. What do you think about this ?
prash February 15, 2013 at 7:12 pm
What if the person doesn’t apply for COS from H4 to H1, but applies for H1 independently. In that case, I guess as long as you don’t convert to H1 fully, you may still be ok without payroll. What do you think about this ?
Hi Saurabh,
Thank you for sharing information here, I have couple of questions. I am currently working with an MNC in India, I recently got married and my wives H1 is approved in the meantime. I was wondering if it sensible for me to leave my job here and apply for H4 along with her and later convert it into H1. The purpose is to stay together as we are newly married and I wouldn’t want to jepordize her career while I have a flexibility to move.
Also I have done my MS in USA so does it add to my H1 process or atleast finding a job which would be intrested to process my H1. I would appriciate your responce.
Thanks
SP,
You can look at the companies in and around your wife’s location in US to see if there are any suitable openings. If there are, you can see what kind of job requirements they have and if you fulfill them.
Having done MS adds value to your resume. However, as you don’t have OPT you will still have to go through the consulting company route as major big companies do not prefer to wait for 6 months waiting for you to start employment.
sp,
this is chowdary, we will process both of your requests. please send me your resumes to pmchowdary333 at gmail dot com
Hi Saurabh:
I am on an H4 visa in the US currently. I my previous employer in India is ready to file a H1B for me in April 2013 quota. Meanwhile, they want me to work in India for them. So following are my two options. can you please advice, which is better -
Option 1 –
I travels to India in Jan on my H4 Visa
Work for my previous employer in India till March to get the handle of technology they are working on
Resign the previous employer in India in March and comes back in the US on H4 visa
My previous employer files a new H1B and a COS from H4 to H1 in April
We wait for H1 and COS to be approved and once approved I starts working on H1B in October 2013
Option 2 –
I travel to India in Jan on my H4 Visa
Work for her previous employer in India till May – June to get the handle of technology they are working on
Meanwhile the employer files a fresh H1B in April
Without resigning from the company, I take leave without pay from them and then I travels to US in May – June on my H4 Visa
We apply for my COS in June and wait for it to get approved
Once the COS is approved, I can start working on H1B in October 2013
Please advice.
Trupti,
I don’t see major difference b/w the two options from H-1 perspective. It comes down to how soon you can pick up the technology and how long your employer wants you to work for them before you return to US.
Although there is not a major difference b/w the two, I personally prefer Option 1 as in this case COS is applied along w/ H-1 petition and you don’t need to wait to file 2 applications like Option 2 (H-1 petition and a separate COS). In addition, you should plan to reach US at least 20-30 days prior to H-1/COS filing date to avoid any possible questions from USCIS about your intent.
Hope that helps!
Hi Saurabh,
Yesterday my H1B moved from RFE review to decision stage and below is the message I am seeing on USCIS website for my application. Can you please tell what does this mean? Is it a positive or negative response or is there any chance of moving it to RFE again. Are they looking for more info from my employer?
“On December 10, 2012, the review of your I129, PETITION FOR A NONIMMIGRANT WORKER was completed, and a notice informing you of the USCIS’ intended action was mailed. Please check our website at http://www.uscis.gov for further updates on your case, including when the notice is mailed. If you have not received the notice within 14 days of the date above, please call customer service at 1-800-375-5283 for further assistance. If you move, please use our Change of Address online tool to update your case with your new address.
During this step the formal decision (approved/denied) is written and the decision notice is mailed and/or emailed to the applicant/petitioner. You can use our current processing time to gauge when you can expect to receive a final decision.”
Thanks,
Priya
Priya,
Off late this message has started popping up for lot of people. One wouldn’t know the eventual status until your employer receives the physical copy.
I am on H4 status want to apply for H1 in April 2013. But as a back up
I do a COS for F1 status.
COS takes 4 months(NY). Suppose I find someone to sponsor my H1b in
April and in the mean time I also applied for Change of Status (COS) from
H4 to F1 and application is still pending. what will happen then ?
Any suggestion on my previous comment ? btw COS I mean change of status
Sam_J,
It will start a race scenario and petition approved later will determine your final status. Let’s say F-1 is approved first followed by H-1, then final status will be H-1.
Can’t you enroll in school on H-4 and then apply for COS from H-4 to F-1 if H-1 is met w/ denial?
Hi Saurabh / Experts,
My husband got H1 stamped and along with his H1, mine H4 was stamped and i am planning to move to US in March 2012.
I want to apply H1 from us and i have some queries regarding H4 to H1 conversion. Please advise.
1. How to find out the companies who can offer me a job starting with Oct 1st because it would be around 6 months gap if i get any job in April.
2. Do i need to come to India in case my H1B is approved or the Visa can be stamped from USA itself.
3. What are the chanrges for H1B 2014 in case i am asked to pay the amount for H1B transfer.
Any other details if you think is relevant, please provide the same.
Hoping for your quick and affirmative reply.
I guess you meant Mar 2013.
Your would start your H1B process in April 2013 and charges will be the usual H1B petition amount unless you want to do it premium. Also, regarding the job, you need to find an employer who will sponsor your H1B and process your H4 to H1B conversion. If the employer is kind enough to process your H1B on April 1’2013 for a job to be started in OCt’2013 thats good. Or Else, usually its like you will find a job sometime in Sept / Oct and then an employer sponsor you for a H1b with premium processing.
And, for H4 to H1B conversion, i guess you can have your Visa stamped later when you visit india.
Saurabh-Not sure if i am wrong.
Hi,
Send your resume. Let me check whether we can sponsor your H1B.
Regards,
Hareesh
Let me check what best can be done for ur H1 visa.send your resume to hareeshemri at gmail dot com.
Regards,
Hareesh
Hi Hareesh…
Thanks a ton. I will share it asap.
Hi Anitha, Did you get any help from Hareesh? I am in same boat. I have H1b approval notice which I am lookign for H4 to H1 COS if I can find good job.
Please update me .I am desperately looking for job.
Thanks,
Sri.
Hi Sri,
When did you get the approval?When was ur RFE responded?
Please share your email id, need to share a information with you…
Hi KJP,
Yes it was typo mistake and thanks for correcting.
But as per last year, H1B cap reached in July so in case i find any job in Sep-Oct, it wouldn’t be helpful. Rather it should be applied asap.
Please advise.
In that case, you would need to find an employer(direct client) who is willing to sponsor and wait for 4-6 months. Or, you might have to join an consultancy ( employer ) who will process your H1B and then find a Client(project).
Anita,
KJP is correct. Usually consulting companies are willing to file in April and wait for you to start employment in October. The downside is that lot of them result in denial as they are small companies w/ no direct clients or have unproven track record. So be very careful when going down this path.
Anitha,
this is chowdary, we will process your request. please send me your resumes to pmchowdary333 at gmail dot com
Hi,
My husband’s visa changed from L1 to H1 and he started working on H1 from October 1st 2012. I am on L2 EAD and waiting for my H1 which was applied in May 2012 but is in “Request for Evidence Response Review”since September 19th 2012. So right now I think I am out-of-status as my employer earlier said not to apply H4 (along with my husband’s H1 application)when my H1 was already in process.
What all risks are involved if we(my husband’s employer) apply for H4 when my H1 is in RFE-review phase and what challenges I need to face related to H4 application at this stage (my I-94 is valid till July 2013)?Please advice.
Thanks,
Shivanshi
Shivanshi,
USCIS can ask for proof that you were maintaining status. You can try to file COS from L-2 to H-4 and see what happens. The other option is to leave US, go for H-4 visa stamping and then return on stamped H-4 visa.
It has been around 2 months since your husband moved to H-1 and you stayed back on L-2. Your attorney should have given you a better timely advice.
Hi Suarabh,
I am having H1 visa and it expired before 4 months (completed years), but my I-94 is till December 15 2012. I have applied fo Green card and my LCA is approved and now applied for I-140. I dont know how much it will take and 16 dec is my last date here. please let me know after I-140 can I saty in US. and how much time I-140 will take as i applied it before 10 days from now.
i have completed 6 years in H1B
Van,
One can apply for 7th year extension based on approved PERM and pending I-140. Talk to your attorney about it and ask them to file H-1 extension ASAP. Also, you can recapture any time you already spent outside US during those 6 years of H-1.
Hi Saurabh,
My question is related to SEVIS Fee. My aunt in US has paid my Sevis fee on my behalf and she has entered US address. Now in the final receipt that comes has US address so will this create a problem for Visa. Please help me out
Regards
Sonal
Hi
I have filed my H1B on june 11 th with approved L.C.A in Minneapolis but applied without client letter(employment contract.)Now my husband got a job transfer and we moved to Albany,New York. Since my H1B filed without employment contract I am expecting an RFC.
Can I submit employment contract/client letter from Albany for my H1b if I am getting an RFC?
I am worried because in my L.C.A job location is Minneapolis?So I am wondering will USCIS accept client letter from Albany for my H1B Petition.Please give me a reply.
Thanks
Shamini,
See my response to your other post.
Hello Saurabh,
My visa status got converted from H4 to H1 in 2011. This year, 2012, my spouse’s H1 is going to get extended. Can I file for an H4 extension too? or does the H4 become invalid after conversion to H1.
Gia,
If you are on H-1 visa status right now, then no action is required on your H-4. If you are still on H-4 visa status, then extension needs to be filed.
Hi Saurabh,
I have a H1B visa which was first issued to me on Oct 2005. I returned back to India in Oct 2009 and I again came back to US in March 2011 after a gap of more than 1 year. My petition got extended till May 2013 which means I will be completing 6 years on this H1B visa.
My question is will I be eligible for a new H1B visa starting April 2013 since I already have a break of more than 1 year from 2009 to 2011?
Or I will have to spend another year away from US before I become eligible for a new H1B visa?
Thanks,
st003
st003,
Time reset happens with staying 365 days out of the US after 6 years (Including any time spent outside) of H-1B visa. Suppose you leave US on 1st of May 2013, then you are allowed to re-enter US by 2nd May 2014. One can apply H-1B petition only with a date of entry 6 months ahead of time, not any more than that. There are some exception if you are going back on B1 within 365 days, you can search for further details regarding this.
BTW, if you want to go back again then why not apply for GC, you can stay there if your labor cert. is approved and always have an option of coming back whenever you want.
@Indiguy – i guess you misunderstood the question. st003 has already stayed out of US for more than 365 days in 2010-11. His question is has that contributed to reset the 6yrs calcuation? i.e Upon his current H1B and arrival on march 2011, can he stay for 6yrs from march 2011 till march 2017. I believe he can.
Hemant,
stoo3 can only extend his current H-1B max upto 6 yrs. He can go for a new H-1B for another 6 years after he has exhausted his current H-1B and stayed outside US for 365 days. The time he spent out side US betwen 2009-11 is already reclaimed by him or he is reclaiming them. He can’t apply for H-1B for another 6yrs while he is in the US. He had to stay out of the US for the time of 365 days to be eligible for it.
I think someone who has expert knowledge would be better to answer this situation.
@Stood3, I would recommend you to consult an immigration lawyer in US to get more clarity. It might cost you some money but help you understand your options.
True.
For his question of whether he can stay 6yrs in US from 2011 , i guess its “Yes”.
ST003,
Your clock is reset only when you have spent 365 days outside US, and go through the cap again. If you stayed outside US for more than 365 days, but then used a previously approved H-1 petition, then clock is not reset. So your tenure will still end in May 2013.
Hi Saurabh,
I am on H4 Visa. The H1B filing quota is full for this year. Kindly clarify if a company is willing to sponsor me now what are the options available to get work permit other than H1B. Is H1B is the only option to get work permit? What about L1 and whether the same can be filed at any time or like H1B any time duration is there.
Advance Thanks
Arun
Arun,
L1 is intra company transfer visa. Where do you live currently? US or outside?
Hi Indiguy,
I am in US and on H4 Visa.
Arun,
Based on the information you have provided, H-1 is the only option.
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