Immigration Law Questions? Ask an Immigration Lawyer.
Hello,my name is Judith. Thank you for this opportunity to answer your questions.
What year is the H1B valid for? 10/1/2013 or 2014?
The H1 was valid from 10/1/2012 to 2015.
And was the H1B petition for consular processing (even tho as a Canadian you don't do that) or was it a change of status?
H1B was files as consular processing as I was travelling last year.
You can use the petition. You will not be required to meet the cap count again.
The text of the law only requires that the prior petition was counted towards the cap within the preceding 6 years of a new petition being filed.
Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations.
The fastest way is to depart and wait for the petition to be processed through premium processing and then re-enter.
Should I depart before H1 is filed or can I depart any time after H1 is filed. And should the H1 again filed as consular application right? And when I depart will my COS from TN to F2 automatically abandoned or should I ask to revoke that application before the company apply for H1b. Say If i depart over the weekend my current COS will abandon and can I immediately enter via B2 or F2 with I20 at border and then aply for H1B and COS with-in.
Sorry for too many questions.
Your departure automatically abandons your COS to F2.
You still should write USCIS and withdraw based on abandonment via departure.
Your new employer again requests consular processing.
I have concerns about leaving, immediately renentering on B2 or F2 and then immediately applying for COS as that looks like fraud, that you lied when you said you were coming to visit or be spouse of student when you had intent to work all along.
Since you have a pending COS and are not accruing unlawful presence you can wait until the petition for H1B is approved.
a. Can the employer apply for I129 for H1 for consular processing while my COS is pending this way I dont have to leave my family and once approved Can I go out and abandon my F2 COS and reenter with H1.
or leaving out and staying out while application H1 is processed via premium is the only option.
Ramesh, I believe I answered this but not clearly:
a. Can the employer apply for I129 for H1 for consular processing while my COS is pending this way I dont have to leave my family and once approved Can I go out and abandon my F2 COS and reenter with H1. Yes, you can do this and it is what I suggested you do. You can wait here with the pending COS while the new H1B consular processing petition is adjudicated.
You do not have to do this since you have the pending COS..
Since I am no longer working with previous employer and since I have not activated my initial H1, will there be any complication in new H1. Also how should the new H1B filed. Should it be filed as change of employer or filed as a new petition under Cap-exempt.
Thanks a lot Judith. The company lawyer is doing. Initially the lawyer mentioned that I have to wait till I get my F2 approved and hence I am seeking answers.
So based on your information, The company can file a new petition with previous approval and consular processing under premium processing while I am waiting for my F2 COS. and once I receive the approval all i have to do is go out and reenter with H1. Please confirm if my understanding is right so we can close this topic.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).