HIB Visa validity on Petetion which is valid till Sep 19 2012 only

Question

Hi All,

I am looking for expert inputs on my case and would be really helpful if you guys give me some inputs as I am kind of stuck with so many queries.

Background: I have approved H1B Petition which is valid till Sep 19 2012 only . The petition got approved in 2009 and till now the consultant have never called me to US , neither I have shown any special interest in going to US , now my wife got H1B and she is getting opportunity to move to US for a yearlong project and we are not able to find out the ways if I can accompany her to US.

1. Can I still go for Stamping on the petition which is valid till 19 Sep 2012? What will be the validity of the stamped visa?

2. If stamped by any chance do I need to come back to renew it before Sep 2012. Let see If I get visa till July end and will travel with wife to US.Do I need to come back to India to renew it ?

Please note that I don’t have any contact with consultant now and I am not sure if they are into IT or not ..I don’t have any pay slips and Tax proofs with me saying that I was working with them since last 2 years and now need visa stamping. I just have original papers with me along with offer letter and other labor laws related stuff.

We are totally confused like what can we do? If I go with wife on H4 I cannot work in US and have to wait for new H1B till April 1.

I don’t know if we should utilize this petition or not?

Answer 1

1. You cannot go for stamping with that petition if its not supported by the petitioner. Moreover, its almost the end of your petition validity and I believe there is a high chance of denying the VISA.

2. Though highly impossible, if you are lucky and got stamping, you dont need to come back to India for renewal of VISA. You can renew the petition in US only.

An option for you is to go to US on H4 VISA and try to get a job there - you could use this approved H1B petition to file cap-exempt petition and need not wait till April 2013.

Comments

Hi Sujith,

Thanks a lot for your inputs . well I would like to ask that :-

1. Do I need to reach to US on H4 before Sep 19 ? If Yes then do I need to search Job within Sep 19 ?
2. If answer for above is No then what is the time limit where I can go to US on H4 and can still utlize the petetion which will expire on Sep 19.

once  I reach to US on H4 , as per your view how much time it will take to transfer my status from H4 to H1? Because USCIS may see  that I just came before peteion is expiring and they may delay their approval and hence by visa which would effect my working capability.I should be aware that approx till how many months I need to stay wihtout work.

Also what is this cap exempt petition ? I hope it will be easy to get it even petetion is expired like in my case

Thanks for support

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You can use your current H1B petition to work only for that petitioner. Hence if that petitioner is not offering you a job, you cannot use that petition for working in USA. However, you may use it for filing a new H1B petition which will be cap-exempt.

1. See my statement above.
If your wife's H1B is for FY2013 and she can start working only from 1st October, you cannot travel before 20th September 2012. If her H1B is pre-FY2013 quota, you may travel from the VISA start date.

2. See my first statement above.

As for H4 to H1 status change, I have seen people suggesting to wait for 60 days before applying for COS due to the point you mentioned.

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Hi Sujith,

Let me summarize my understanding and you can put your final conclusion.

1. My wife visa stamped long back and hence its better if I can go with her on H4 for now.
2. Now Since my H1B Petetion is valid till 19 Sep 2012 but that doesn't stop me to search job in US even after Sep 19 2012. However If my current employer do some favor I can even start working before sep 19.
3. It will take 2 months to change my staus from H4 to H1B [ Subject to aviliability of Job ] and that would be cap exempt and I need not to wait till April 2013 for new H1B petetion.

Thanks

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1. Yes.
2. That's correct. If your current employer (who is the petitioner of your H1B) offers you a job, you can start as soon as possible. But your employer will have to file H1B extension soon (before it gets expired).
3. Its better to plan for COS after 2 months so that USCIS won't question your intension to enter US on H4 (as H4 cannot work). Yes, it will be cap-exempt.

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Hi Sujith,

Regarding point 3 : You mean once I reach to US on H4 let say during Aug-Sep period then I should apply for COS in Oct-Nov some time . Meaning I should not be in hurry for COS once petetion expired as they might get the intention of entering to US on H4.

And on H4 I can not even work from home for Indian Employer [ paid through Indian Payroll ] ?

Thanks

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#3 - yes, that's what I meant. You can go for COS only when a company offers you a job and files your H1B petition.

I don't think there is any issue in working for an Indian company (from home in US) paid through Indian payroll. I am not sure if that is legal or not, but I know a person who works from US like that.

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Hi Sujith,

I have just came across one article which says " The H1B Cap exemption also applies to workers who are currently outside the US, as long as they held an H1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the US" [ Actually it was refered by you only in one similar post ] .

The last line says "and have not spent a full year outside the US" BUT I am in India since three years means I have spend more than years outside US hence I may not be eligible for ca- exempt petetion. Dont you think so ?

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As per my understanding from reading various forums and websites, once you have spent one full year outside US you have the option to go for either cap-subject petition which will enable you to reset the H1B/L1 clock (maximum 6 years) or cap-exempt petition.

We have a reader who was successful in filing cap-exempt petition even without going to US for once - http://redbus2us.com/qa/1841/filing-new-h1b-petition-under-cap-exemption?show=1882#a1882