Travelling before H1B approved | Consular process of H1B

[chirag8]

Hi,

My wife is currently on H4 and she applied for H1B which is currently pending. She has to travel to India due to unavoidable personal reasons and won'b be back until February,2016.
Her employer is asking her to leave US before H1B get approved and go through consular process while being in India to be back on H1B. My questions are below
1. If she travels before H1B got approved and it gets approved when she is in India, would her petition be cancelled? And would she have to go through lottery again ?
2. What is the difference between the Consular process and normal one ? How much time the Consular process generally take ?
3. Do we have any other options ?

Thanks in advance !

[raghvi]

Hi,

My wife is currently on H4 and she applied for H1B which is currently pending. She has to travel to India due to unavoidable personal reasons and won'b be back until February,2016.
Her employer is asking her to leave US before H1B get approved and go through consular process while being in India to be back on H1B. My questions are below
1. If she travels before H1B got approved and it gets approved when she is in India, would her petition be cancelled? And would she have to go through lottery again ?
2. What is the difference between the Consular process and normal one ? How much time the Consular process generally take ?
3. Do we have any other options ?

Thanks in advance !

1. No once cap counted and approved need not go through lottery again for next 6 Years.
2. In Consular process she has to face H1 interview at a US consulate. She can use her approved petition to schedule H1 interview.
3. She can come back on H4 visa in Feb 2016 and her employer can file a COS from H4 to H1 there is no guarantee it will get approved.

This is my opinion not legal advice.

[chirag8]

1. No once cap counted and approved need not go through lottery again for next 6 Years.
2. In Consular process she has to face H1 interview at a US consulate. She can use her approved petition to schedule H1 interview.
3. She can come back on H4 visa in Feb 2016 and her employer can file a COS from H4 to H1 there is no guarantee it will get approved.

This is my opinion not legal advice.

Thanks a bunch raghvi for quick response. It is a relief. I have few more final questions.
1. How much time does it take to go through consular process and get H1B. Is it same as scheduling H1 interview in normal case or there is something different.
2. Do they ask more questions during interview if you are going via consular process ?

Thanks in advance

[shervin143]

1. How much time does it take to go through consular process and get H1B.
>>> Consular process is nothing different. It takes the same amount of time like any other applications. With consular process, the petition if approved will not come with a new I-94. So for your wife to return back to U.S in H1B status to begin working for the employer immediately, she will need to schedule a H1B visa interview at the U.S consulate after the H1B petition approval and will need to enter U.S in H1B visa.

Is it same as scheduling H1 interview in normal case or there is something different.
>>> It is the same. No difference.

2. Do they ask more questions during interview if you are going via consular process ?
>>> Nope. For people outside U.S, the H1B need to be filed as consular process (approval with a I-94). For people already in U.S, they will file the petition as a COS (Example: H4 to H1B) or an extension (extending the H1B or H4 petition) which will come with a new I-94. That is all is the difference. As per visa interview, it makes absolutely no difference.