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H4 to H1B

Ellicott City, MD |

Hi, My wife went to India on March 2013 and will be back on 15th April 2013. I want to apply H4 to H1B for her. But she don't have I-94 as she is in india. She got her H4b stamped and valid till dec 2013. Please advise can I apply her H1B from USA without providing I-94 and give the information with updated I-94 once she is back on April 15th,. We don't want to wait till that time as the cap is anticipated to reach by 2nd week of april.

Appreciate the response!

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Attorney answers 3


First of all YOU can't file an H-1B for her. Only a prospective employer can sign the I-129H.

No offense, but you seem to be clearly confused as to the process (eg: an I-94 isn't required).

I strongly suggest you let the employer's immigration lawyer handle things.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.



Sure. I my apology for not making that point clear. One of the company is ready to sponsor her H1B. But she is in india, and as per my understanding, if we file H4 to H1b which is change of status, I-94 is one of the document, USCIS need. Please correct me if I am wrong.

F. J. Capriotti III

F. J. Capriotti III


You are incorrect. As she is in India, the company can file a free-standing I-129H, with a start date of October 1, 2013. She can return to the US on the H-4 and the COS ... or better yet an H-1B visa stamp, can be done later ... like August/September. Again, you should be talking about this with the company's immigration lawyer. Do NOT do this by communicating with someone in HR.


A potential employer can file an H-1B petition for her, but since she is not in the U.S., they cannot file a change of status for her.

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


I agree with Attorney Shusterman.

Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.

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