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I had H1B approved before entering US in H4 Visa. Can I file change of status to H1B within 30 days of entering to USA?

Richmond, CA |

I was in US in F1 visa and applied H1B. H1B approved without change of status, so had to go to home country for visa stamping. While h1b stamping decision is pending for more than a month at US consulate, my wife got sick in US as she is pregnant and had to withdraw H1b application from US consulate and applied H4 on wife's H1b and came to US. As my H1b was approved already and I am on cap exempt, if any employer is ready to file H1b now, then can I file my change of status from H4 to H1b within 30 days of entering to US? Or I have to wait till 60 days as it is going to be visa fraud 30/60/90-day Rule? Please advise!

Thank you!

Attorney Answers 3


  1. Can you file? No. H-1Bs are filed by employers.

    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.


  2. Your employer should pose this question to this immigration lawyer who prepared your H-1B petition.

    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.


  3. Mr. Fararri has hit the nail on the head. Only employes file H1Bs.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

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