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I am on H4 now . Can I apply for H1 - B visa staying in India ?

San Jose, CA |

I am on H4 visa now , and going to India on March 12th and will be back in june . can my employer file my H1 - B petition on April 1st even if I am in India . From October 1st , my status will change to H1 - B , so before October 1st , can I comeback to US on H4 status or do I have to wait till October 1st in India itself and get the H1 - B stamping done to comeback to US .

Attorney Answers 4


  1. Yes, your employer can file an H-1B petition for you while you are in India.

    Upon your return you will still be readmitted on H-4 status. You cannot get "h-1B stamping" until September 20, the earliest.

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  2. The filing of an H-1B does not require that the beneficiary be in the US.

    Your employer needs to retain an experienced immigration lawyer to review all the facts, advise them, and handle the case. Your employer can find one through http://www.ailalawyer.com.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  3. You employer can seek H-1B in your behalf while you are abroad. Ideally you will seek entry after the H-1B visa has been issued to you.

    This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.


  4. I agree with other lawyers. I think the problem which you need to address is when you want to come back. If you intend to return in June, then you can only return in H4 status. Since you can not work until October 1, 2013, you probably will have to file change of status from H4 to H1. You should consult with a lawyer and strategize your visit to India, filing of H1b petition and then change of status from H4 to H1 upon return.

    You must contact a local attorney or obtain telephonic consultation from an attorney to discuss specifics of your situation and get full advise. The information given here is general in nature and does not establish attorney-client relationship.

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