Need info Regarding H1B to H4 and back to H1B

[narendrababu]

Hi

Please advise on below condition
I
hear is the situation candidate A got H1B during 2008 H1B Quota and never used (does not have pay stubs) that that time candidate was on H4 status that petition is valid till 30 Sep 2010.
If candidate A decides to work convert status from H4 to H1B now i.e Feb 2012 . Can candidate A apply for H1B and start working from the day one received H1B receipt or need to wait till gets H1B Approval and candidate will not fall under cap limit of 2012 right

Thanks in advance
Babu

[kabkaba]

Yes, that petition can be used to claim cap-exemption. However, they cannot start working before change of status gets approved.

However, if earlier petition was filed as change of status there are status issues involved here.

[narendrababu]

Thx Sir .Yes it was change of status from H4 to H1B when we applied during 2007 .Candidate got SSN now.Candidate got project need to start immediately if we file Premium it will take 15 days .I was thinking once we get receipt number canidate can start working .Please suggest to apply in normal or Premium process

[kabkaba]

No, not with receipt number, approval is a must as current status is H4 and not H1. When did the change of status back from H1 to H4 occur? Any time spent in the US in H1 status will be lost.

[narendrababu]

Candidate was on H4 when entered back in 2006 and applied h1b by keeping h4 i-94 while staying in usa during 2007 got h1b with new I94 and never used H1b(no Paystubs)..canidate went to india in 2009 march and had h4 stamping came back to USA and candidate got H4 extension also that is valid till 2014 for candidate during 2009 feb candidate employer has send letter to uscis saying candidate no more on h1b and now same employer is applying candidate new h1b(Amendentment)

[kabkaba]

All the above is possible.
Note that the 'candidate' was out of status from Oct 2007 to March 2009. If USCIS wants to dig it up, it will create problems.