H4 to H1B Transfer

[rijo_v]

Hi,

My wife had a valid H1B Visa in 2006 which got expired in 2009. During this period she worked in US from early 2007 to late 2007.

Her employer(same as the expired visa) filed for another H1B Visa with Cap exempt based on her previous visa in 2012 and she got it stamped in July 2012.

But her employer is unable to send her to US and her visa is getting expired in March 2014. So she has not yet travelled to US on her latest H1B Visa.

I am currently in US on a H1B and hence would like to know if, It is possible for her to travel to US on H4 Visa(as my dependent) and then file for H1B here in US as CAP exempt with a new employer. Since she has not travelled to US with her current Visa, she does not have any pay stubs.

Please advice if she is eligible for CAP exempt Visa Transfer with a new employer here in US after she reaches US with a H4 Visa.

Thanks,
RV

[raghvi]

Hi,

My wife had a valid H1B Visa in 2006 which got expired in 2009. During this period she worked in US from early 2007 to late 2007.

Her employer(same as the expired visa) filed for another H1B Visa with Cap exempt based on her previous visa in 2012 and she got it stamped in July 2012.

But her employer is unable to send her to US and her visa is getting expired in March 2014. So she has not yet travelled to US on her latest H1B Visa.

I am currently in US on a H1B and hence would like to know if, It is possible for her to travel to US on H4 Visa(as my dependent) and then file for H1B here in US as CAP exempt with a new employer. Since she has not travelled to US with her current Visa, she does not have any pay stubs.

Please advice if she is eligible for CAP exempt Visa Transfer with a new employer here in US after she reaches US with a H4 Visa.

Thanks,
RV

Your spouse wouldn't be Cap Exempt as one needs to be in H1 status in last 6 Years in order to be Cap Exempt. Though she got a new visa in 2012 but technically was never in H1 status as she wasn't in US on H1 in last 6 Years.

This is my opinion not legal advice.

[rijo_v]

Your spouse wouldn't be Cap Exempt as one needs to be in H1 status in last 6 Years in order to be Cap Exempt. Though she got a new visa in 2012 but technically was never in H1 status as she wasn't in US on H1 in last 6 Years.

This is my opinion not legal advice.

She was in US upto November 2008 and the Visa got expired in 2009. Later the company filed Visa for her as CAP exempt in 2012. So she was in US as H1 in that last 6 years. But yes, she has not travelled to US with her current Visa. So in this case, can she file for CAP exempt after she reaches US as H4.

[raghvi]

She was in US upto November 2008 and the Visa got expired in 2009. Later the company filed Visa for her as CAP exempt in 2012. So she was in US as H1 in that last 6 years. But yes, she has not travelled to US with her current Visa. So in this case, can she file for CAP exempt after she reaches US as H4.

Earlier you said late 2007 hence I told she would not be cap exempt. But now you saying 2008. Anyhow as she was in valid H1 status in last 6 years and if her 6 year physical stay on H1 is not complete then yes an employer can file a cap exempt H1 petition.

This is my opinion not legal advice.