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

[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

[VKRAMESH]

Anybody have feedback ?

Anybody have feedback ?

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

[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.

[VKRAMESH]

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

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.