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Expert James
Expert James, Immigration Attorney
Category: Immigration Law
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Hi, Requesting your advise; I work in US on H1 visa in software

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Hi, Requesting your advise; I work in US on H1 visa in software srvices with a reputed firm; My wife joined me here on a H4 visa (she resigned from her job in India) in 2011; In 2012, we processed her H1 & she is currently working since Nov' 2012 here in US; Her sister has suddenly fallen very sick & in a critical condition; Now here is the problem, if she should go to India, she would have to go for visa stamping & the talk is consular officers are strict towards H4 to H1 visa conversion cases; I read somewhere about 'cancellation without prejudice', which says when a person goes for H1 visa interview the existing H4 visa stamping would be cancelled irrelevant of whether H1 visa stamping is done or rejected; IS this true & if so is there a wait period before she could go for H4 stamping again ?

Thank you for using this service. I'll do my best to answer your questions as completely and honestly as I can. All I ask in return is that you give me a positive rating for my customer service. This is the only way I get credit for assisting you. If you feel the need to use "poor service" or "bad service," please ask follow-up questions instead, so that I can try to help you further. Please remember that the law sometimes does not have a satisfactory solution for your issue; unfortunately, this is something I cannot control.

 

Not necessarily. Not every H4 is cancelled without prejudice, simply because of the issuance of the H1B. They are different visas, and therefore are mutually exclusive of one another.

 

As far as a wait period, there is none. That's what it means by "without prejudice." There is nothing to stop her from applying for a new visa in the future, should she want to do so.

 

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Customer: replied 3 years ago.

Could you please explain what circumstances lead to 'cancelling without prejudice' & what other circumstances wouldn't...?

Katrthik,

According to the USCIS, cancellation without prejudice is "[a] stamp an embassy or consulate puts on a visa when there is a mistake in the visa or the visa is a duplicate visa (two of the same kind). It does not affect the validity of other visas in the passport. It does not mean that the passport holder will not get another visa."

Sometimes, it is cancelled without prejudice when there are two visa types that have intents attached but that are diametrically opposed to one another. H4 & H1 are not of the type.

And sometimes it happens at the border in the US when an alien has been incorrectly issued a visa from the US consulate abroad, or where there is an issue in the alien's immigration history that would have caused them to lose the visa, but that has not yet been discovered.

There is no such thing as a list of scenarios where it would not be stamped with such a notification. It is not like everyone is presumed to get this stamped, unless one shows otherwise. So if there is no violation in the immigration history or if two visas are not diametrically opposed to one another, or the visa has not been incorrectly issued by the consulate, then this generally should not be an issue.

One final consideration is that an alien is given the privilege of entering the US and/or getting a visa. It is not a right, and therefore, the US consular officer ultimately has the authority to not issue, or cancel a visa, if there is a basis to do so.

I hope I have answered your questions. Keep in mind that I only get credit for my work if you rate me positively. If you're satisfied with my answer and my professionalism - not the outcome or the state of the law which I cannot control - please select a top-three rating. Again, if you feel the need to use "poor service" or "bad service," please ask follow-up questions instead, so that I can try to help you further. Remember that the bottom two negative ratings are used for Experts or professionals who are rude and/or bad at their job, and I'm confident you'll find me to be professional and truthful with you.

A bonus is appreciated, if you feel I've earned it.

If you want me to answer questions in the future, you can write "FOR LONGHORN" at the beginning of your question, or go directly to my question page here: Ask Longhorn Lawyer

Thank you!
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