Immigration Voice

racoon786 · #1 (**permalink**) 12-17-2008, 02:33 PM

I am planning to apply H1-B for my wife on H4. She is traveling to India on Jan 11 and returning May 1st. My question is, can I apply H1-B for her in March while she is out of the country?

ashkam · #2 (**permalink**) 12-17-2008, 02:55 PM

Quote:

Originally Posted by racoon786

I am planning to apply H1-B for my wife on H4. She is traveling to India on Jan 11 and returning May 1st. My question is, can I apply H1-B for her in March while she is out of the country?

H1B is an employer's petition. Are you the employer? An employer can apply for an H1B regardless of where the prospective employee is.

ItIsNotFunny · #3 (**permalink**) 12-17-2008, 02:58 PM

Quote:

Originally Posted by racoon786

I am planning to apply H1-B for my wife on H4. She is traveling to India on Jan 11 and returning May 1st. My question is, can I apply H1-B for her in March while she is out of the country?

Yes - no issues.

racoon786 · #4 (**permalink**) 12-17-2008, 03:02 PM

My employer is going to file for her H1-B. I know that once you apply for change of status, if you leave while case is pending, it is considered abandonment. But, I just want to confirm that this rule doesn't apply to my wife, who would be outside the country when I file for her H1B.

racoon786 · #5 (**permalink**) 12-17-2008, 03:17 PM

There are several issues, a person who files a petition for change of status, and then leaves the United States is deemed to have abandoned the petition. In other words, a person who is changing their status from H4 to H-1B must remain in the United States during the pendency of the adjudication of the petition.

In addition, if a foreign national has not been previously counted against the H-1B cap, then they would be subject to the H-1B cap, and these H-1B petitions may only be filed on April 1, 2009, for an effective date of October 1, 2009.

Lastly, there is the issue of the last action rule.

shanky555 · #6 (**permalink**) 12-19-2008, 02:12 PM

The Answer is -
1. Yes an employer can file her H1B while she s in India. It would NOT be a case of COS. It would be a new H1B.
2. It would be subject to Lottery.
3. She comes back in May on H4, If selected in lottery, in October before starting to work, she would have to go back , get H1b stamped ,and get the i-94 for H1B.

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