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Old 06-15-2009, 01:30 AM
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EB2
I140 Mailed Date
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09/29/2007
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Default Converting from B1 to H1

Hi,

I have friend who was in US for 7 years (F1->H1) and moved back to India. Later, he came here on B1 for couple of times. What's the best option for him if he wants to come back to US to work full time.

Thanks in advance.
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Old 06-15-2009, 01:54 PM
US Immigration Attorney
Law Office of Elaine Martin
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Dallas, Texas-75214
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The answer depends on various facts not listed in your question. I assume that he wants to return in H-1B status. If he has not used his full 6 years in H-1B status before, he can get the remainder of his 6 years without being subject to the H-1B cap. If he used his full 6 years and now has been outside the US for one full year, he can get another 6 years, but he will be subject to the H-1B cap (assuming he will work for a cap-subject employer). If he didn't use his full 6 years, but has been outside the US for a year, he can either (a) apply for a new 6 years and be subject to the cap, or (b) get the remaining balance not subject to the cap.

Since the cap has not been reached yet this year, filing a cap-subject H-1B shouldn't be a problem if he can do it soon.
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This message does not create an attorney-client relationship if we have not both signed an engagement letter. This message discusses general legal questions and other matters. It should not be used or relied on by anyone as legal advice.
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Old 06-16-2009, 12:43 AM
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:
India
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Thanks Elaine for the quick reply. He worked for a non-profit organisation earlier so either way he'll be cap subject. He might need to come here on B1 and would it possible to convert from B1 to H1 after coming to US or will he need to go back to INDIA and appy for H1 visa at the consulate. One benefit of converting in US would be to find the right employer given the economic conditions.

Does his previous stay on F1 & H1 help anyway that he has fair intentions to work here legally while requesting from B1 to H1 or is it recommended to do so while in US and apply for H1 from home country only.

Thanks in advance.
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Old 06-16-2009, 01:09 PM
US Immigration Attorney
Law Office of Elaine Martin
6333 E. Mockingbird Ln Ste 147-910
Dallas, Texas-75214
http://www.martinvisalaw.com
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Not all non-profits are cap-exempt.

He could theoretically apply for a change of status from B-2 to H-1B. However he should not be using the B-2 to look for work. Any change of status, or H-1B visa application at a consulate, might bring up the questions of his activities in B-2 status, and whether he misrepresented anything. If he found a job while in the US in B-2 status, his activities in B-2 status might be questioned.
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Elaine Martin
Law Office of Elaine Martin
Phone: (214) 329-4148
Toll-free phone: 1-866-318-8813
emartin@martinvisalaw.com
www.martinvisalaw.com
www.martinvisalaw.blogspot.com
Dedicated exclusively to immigration law since 1997

This message does not create an attorney-client relationship if we have not both signed an engagement letter. This message discusses general legal questions and other matters. It should not be used or relied on by anyone as legal advice.
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