Can H1B be filed with current status Pending H4?

[kanta80]

My F1 grace period is almost ending. I filed the change of status application to take H4 status and I have received the receipt for it. It says it takes about 100-150 days for the decision. My employer is going to apply for my H1B on April 1, 2006 and I think I will not have the H4 approval by then. Is it possible to apply for H1B with this pending H4 situation? I am concerned since my F1 grace period will end in a week. Will there be any problem at all?

Thanks.

[sertasheep]

Yes, you may apply for multiple visas. However, the rule of latest application of the attached I-94 applies. If you get your H4 first, and then your H1, it would mean your H1 would be valid.

If you get your H1 first, and then your H4, the I-94 attached to the H1 will no longer be valid, requiring you to get the H1 visa stamped in your home country consulate and re-enter.

You could simply wait out until you get your H4(at the risk of running out of the H1 cap). If you're willing to risk traveling and reenterng the US after stamping in your homecountry, you should be OK.

There are some attorneys however, who charge a hefty fee for you to get your H1 stamped at a Canadian US consulate if you fear rejection in your home country.


Regards

[sai]

How can a attorney help in getting H1 stamped at a Canadian US consulate ?

[sertasheep]

Sai,

HOW: Some attorneys have what they call "consular representation" (ie a good working relationship with the Consulates in Canada). I do NOT know how this is feasible, but several applicants who are unable to travel to their home countries due to long consular wait times, fear of retribution, etc., go through a attorney to get the stamping done in Canada.

WHO: There are quite a few who specialize only in consular representation. And, they're VERY successful at this. They travel to Canada, ask you to be present at a rendezvous and then you go together for the interview. But it costs you quite a packet $$$!!!!

Originally Posted by sai

How can a attorney help in getting H1 stamped at a Canadian US consulate ?

[sai]

thanks for the info. Sounds interesting.

[Widget]

Do you have a list and contact numbers of these attorneys? how much do they charge?

Originally Posted by sertasheep

Yes, you may apply for multiple visas. However, the rule of latest application of the attached I-94 applies. If you get your H4 first, and then your H1, it would mean your H1 would be valid.

If you get your H1 first, and then your H4, the I-94 attached to the H1 will no longer be valid, requiring you to get the H1 visa stamped in your home country consulate and re-enter.

You could simply wait out until you get your H4(at the risk of running out of the H1 cap). If you're willing to risk traveling and reenterng the US after stamping in your homecountry, you should be OK.

There are some attorneys however, who charge a hefty fee for you to get your H1 stamped at a Canadian US consulate if you fear rejection in your home country.


Regards

[kanta80]

Thank you very much for your reply, sertasheep. Your information is really useful for me.

[kanta80]

Originally Posted by sertasheep

Yes, you may apply for multiple visas. However, the rule of latest application of the attached I-94 applies. If you get your H4 first, and then your H1, it would mean your H1 would be valid.

If you get your H1 first, and then your H4, the I-94 attached to the H1 will no longer be valid, requiring you to get the H1 visa stamped in your home country consulate and re-enter.

You could simply wait out until you get your H4(at the risk of running out of the H1 cap). If you're willing to risk traveling and reenterng the US after stamping in your homecountry, you should be OK.

There are some attorneys however, who charge a hefty fee for you to get your H1 stamped at a Canadian US consulate if you fear rejection in your home country.


Regards

Now my situaion is: I have the receipt for H4 status change from F1, my employer has applied for my H1B in premium processing today (Apr 3), so that means I would be getting the H1B approval hopefully by the third week of April but in my understanding the I-94 for H1B will be valid from October 1 only while my H4 I-94 will be valid right after I get the approval (probably sometime in May).

In this case, do I still have to go back in my country to validate my H1B I-94 given that H1B is valid from Oct 1?

Please suggest me. I am getting really tensed.

Thank you.

[sertasheep]

Latest issued I-94 card is always in force. Lets say that you went out of the country on whatever visa, and then you entered back. You'll get a I-94 at that time. (Lets call this "X")

While you were away, its likely that you may have gotten your H1 approval. There are 2 possibilities here. You may get an I-94 stub with your H1 . Lets call this Y1.
The other possibility is Y2- wherein you get the H1 approval, but there's no accompanying I-94.

The important point here is when the H1 would be approved. Lets examine the situations under which you need to get a new I-94 by leaving the US and coming back:

Situation 1) X happens, then you enter the US. Then say Y1 has happened while you were away. I-94 from Y1 is no longer valid. You will need a new I-94. Solution: Go out of the US, get stamp, come in with new I-94.

Situation 2) X happens, then you enter the US. Then say Y2 has happened while you were away, or even after you enter the US. I-94 from Y2 is no longer valid. You will need a new I-94. Solution: Go out of the US, get stamp, come in with new I-94.

The only situation wherein you don't need to go out of the country is:
X happens, then you enter the US. After you enter the US, you get your H1 approval with a new I-94 attached.

Confused? I'm on the west coast. you can call me at <EDIT: Removed tel. number> if you aren't clear. Remember, I'm not a immigration lawyer.

To keep it simple: avoid going out of the country until you get your H1 approval.

Someone else asked for lawyer's names. Admin, I'm not sure if it is against policy, but I will mention a name here..you may edit if this is against policy.

See the following link:
http://tinyurl.com/h8doe

[kanta80]

Thank you very very much, sertasheep. I really appreciate your help.