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ringing spouse on H4 on Oct 15 while her is H1 approved with COS effective Oct 1,2008

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  • ringing spouse on H4 on Oct 15 while her is H1 approved with COS effective Oct 1,2008

    Hi Seniors -
    I talked to a attorney about my scenario

    - My fiance has a H1B approved with COS from L1 , effective Oct 1,2008
    - I am on H1B status since Oct 2006
    - We are getting married on Sep 1,2008
    - I appear for H1B stamping at US COnsulate , India | Fiance appears for H4 stamping with me

    QUestions
    1 ] Fiancee travels to USA on Oct 15,2008 so that she can enter USA on H4 status ( note : Last action rule of USCIS is approving her L1 to H1 COS petition ). Since she entered USA on H4 status , she continues to be on H4 status and doesnt need to work with H1 employer. Correct ?

    Response : Yes , correct

    2 ] On or around Feb 2008 , H1 employer files for a amendment to change her status from H4 to H1. This amendment is cap exempt , because she already holds a valid H1 petition that was counted against the cap. Correct ?

    Response :This is a gray area and I have looked for guidance on this. I think this is a major risk because if she does not begin work on October 1, 2008, her H-1B never activates and as a result, she loses it. So she may not be cap exempt.

    3 ] Just entering USA on H4 status on Oct 15,2008 , doesnt cancel her H1 petition. Correct ?

    I believe that this might cancel her H-1B. Remember, she has to comply with the LCA which states that she must begin work on October 1, 2008. There is no grace period

    While this attorney answered as above , another attorney answered similar to TXH1B in my case. See my other thread where TXH1B had prompt answers to my questions

  • #2
    Anybody have feedback ?

    Anybody have feedback ?

    Originally posted by VKRAMESH
    Hi Seniors -
    I talked to a attorney about my scenario

    - My fiance has a H1B approved with COS from L1 , effective Oct 1,2008
    - I am on H1B status since Oct 2006
    - We are getting married on Sep 1,2008
    - I appear for H1B stamping at US COnsulate , India | Fiance appears for H4 stamping with me

    QUestions
    1 ] Fiancee travels to USA on Oct 15,2008 so that she can enter USA on H4 status ( note : Last action rule of USCIS is approving her L1 to H1 COS petition ). Since she entered USA on H4 status , she continues to be on H4 status and doesnt need to work with H1 employer. Correct ?

    Response : Yes , correct

    2 ] On or around Feb 2008 , H1 employer files for a amendment to change her status from H4 to H1. This amendment is cap exempt , because she already holds a valid H1 petition that was counted against the cap. Correct ?

    Response :This is a gray area and I have looked for guidance on this. I think this is a major risk because if she does not begin work on October 1, 2008, her H-1B never activates and as a result, she loses it. So she may not be cap exempt.

    3 ] Just entering USA on H4 status on Oct 15,2008 , doesnt cancel her H1 petition. Correct ?

    I believe that this might cancel her H-1B. Remember, she has to comply with the LCA which states that she must begin work on October 1, 2008. There is no grace period

    While this attorney answered as above , another attorney answered similar to TXH1B in my case. See my other thread where TXH1B had prompt answers to my questions

    Comment


    • #3
      1. Correct.
      2. Incorrect. You mean Feb 2009 right?
      3. Incorrect

      What kind of attorney is this? I am glad I never spoke to him/her.

      I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

      Comment


      • #4
        Yes , me too ! And this attorney got me confused

        Hi Txh1b -
        As i said while this attorney gave me these answers , another attorney gave me similar response to what you told me.

        For 2 - Yes i meant Feb 2009. My fiancee's legal attorney told her that she can jus file for amendment in Feb 2009 , which will be cap exempt since she was already counted against the CAP with a approved H1 petition


        Originally posted by txh1b
        1. Correct.
        2. Incorrect. You mean Feb 2009 right?
        3. Incorrect

        What kind of attorney is this? I am glad I never spoke to him/her.

        Comment

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