H1 filing in India while Interview in USA - Is it possible

[chikunam]

Hello Friends,
I am in a strange situation. i have a valid H1B and soon will be leaving for USA (last week of Feb). i have already done H4 for my wife however she is working in a MNC in india and will have to resign, serve the notice priod and join me in USA. meanwhile her current company has also filed her H1 petition for 2014 quota. now this gets me confusing. is there a way where in she can wait till April 2nd week in India to see the lottery results, if selected she can take LOP and visit USA on H4 visa. and while in USA can she appear for H1 interview in USA iteself (her company USA based). what is that her employer will have to do to ensure that she does not have to travel back to India and her H1 processing can be done from USA itself. i cannot leave her in india alone for 6 months and also dont want her to sit and get bored while in USA on H4. please guide if there is a way to resolve this.
thanks & Regards.

[raghvi]

Hello Friends,
I am in a strange situation. i have a valid H1B and soon will be leaving for USA (last week of Feb). i have already done H4 for my wife however she is working in a MNC in india and will have to resign, serve the notice priod and join me in USA. meanwhile her current company has also filed her H1 petition for 2014 quota. now this gets me confusing. is there a way where in she can wait till April 2nd week in India to see the lottery results, if selected she can take LOP and visit USA on H4 visa. and while in USA can she appear for H1 interview in USA iteself (her company USA based). what is that her employer will have to do to ensure that she does not have to travel back to India and her H1 processing can be done from USA itself. i cannot leave her in india alone for 6 months and also dont want her to sit and get bored while in USA on H4. please guide if there is a way to resolve this.
thanks & Regards.

Unfortunately, there is a compromise you and your spouse would have to make if she wants to have a chance at H1.

Few things, the lottery, if any , and associated results, will not be known as early as April 2nd. Its not as if they announce the list of candidates selected on a public website. Individuals OR their attorneys get notified by mail and that can stretch up to May - June 2014 even for premium processing cases.

As it is a fresh H1 even if H1 is approved , one can start working on that H1 only from 01-Oct-2014 or later.

H1 visa stamping can happen only outside US, not in US.

There are two options for your spouse:

1. Travel to US on H4 in Feb/March 2014, and file H1 on 01-April 2014 as Change of Status from H4. If approved, she can work on H1 from 01-Oct-2014 or later, without needing to go out of US. This way she would be with you in US but unable to work till H1 is approved. I dont know if her company would agree to that as then she wouldn't be able to work for them from the time she enters US on H4 till the time she moves to H1.
OR
2. Stay put in India and file H1 as consular process on 01-April-2014 and keep working with her company till H1 decision comes. If H1 approved, go for stamping around August and travel to US around H1 start date. If not approved, enter US on H4.
But this way you two will not be together from Feb End till H1 decision/stamping happens.

This is my opinion not legal advice.