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powburn wrote:
> Hi,
>
> I'd appreciate if someone could confirm my understanding of visa
> validity and approvals. The crux of the issue, as I understand it, is
> the invalidation of an existing Visa with the Approval Notice for a
> different visa.
>
> I'm currently on an H4 with an expired Visa but with a new Approval
> Notice (and I94 card) valid till 2007. This September 8th I have an
> interview at US Consulate in London to get the new H4 Visa in my
> passport. Upon returning to US I should get a new I94 card valid for a
> stay ~10 days more than the Visa date - straightforward stuff.
Actually, 10 days more than the petition expiration date, although it
will likely be the same for you.
> I've just been offered a job, which means applying for an H1b Visa.
> There are three possibilities I can foresee:
>
> 1. H1b application submitted and approved with premium processing
> before I leave the US.
> This should be OK, since the Sept. 8th interview will then be for an
> H1b Visa rather than an H4 Visa. I don't see the Consulate having a
> problem with this, maybe I'm wrong? Return to US, new I94 for H1b,
> no problem.
Correct, as long as you return after October 1 (I believe you are
allowed to enter ten days earlier, actually).
> 2. H1b application submitted, but Approval Notice received while I'm in
> the UK.
> As I understand it, the approval of a different Visa class
> automatically cancels any existing Visa I have. So even if the
> Consulate issued a new H4 Visa, I shouldn't legally be issued an I94
> for it to enter the US.
Wrong. The approval of a different class cancels your existing *status*
(if you had one), but not your visa.
Of course, if you did use the H-4 to enter the USA, then you would not
be an H-1B, and therefore not be allowed to work.
Incidentally, it is perfectly OK to have the approval notice FedExed to
the UK for your interview.
> Even if I were issued with a new (technically invalid) I94 upon entry,
> the H1b Approval Notice would have a replacement I94 with the old I94
> number on it that was surrendered when I left the US.
The I-94 that was attached to the H-1B approval becomes invalid by you
leaving the USA.
> I presume the only way to sort this mess out would be to return for
> another Consular interview to get the proper H1b Visa & re-enter the US
> again before I did any paid work.
Correct. That is the only realistic way to get back into H-1B status
(the other option would be to file another H-1B petition to change
within the USA. But that would take way too long).
> Regardless, I suspect I'd be
> technically out of status and that's not a good idea at all these days.
No, you would be in status. Just not in the one you want.
> I don't think it would matter when the H1b application was submitted or
> approved as far as the Consular interview was concerned, as long as I
> was out of the US when it was approved. Don't think the Consulate
> necessarily checks back with the US Service Centers before issuing
> Visas, could be wrong?
It doesn't even matter if you were in or out of the USA, the consulate
doesn't care either way. They do check back with USCIS in some cases,
but in this case it's nothing to be worried about.
> 3. H1b application submitted after I return to US with new H4 Visa and
> issued new I94 upon arrival. H1b application would then have to
> include the new I94 number. After H1b approval received, with it's
> updated I94, I can work legally.
>
> This seems the more sensible option, although it still means another
> Consular interview sometime to actually get the Visa.
Correct. The bigger problem with this approach is the timing. Since your
case will be a quota case, it is quite possible that you will miss the
quota and not be able to start working until October 1, 2006 (instead of
2005). So I would recommend avoiding this approach for that reason alone.
> The employer is very keen for me to start ASAP.
> Although 1. is possible, only just, I don't think it's realistic.
> 4. is the nightmare scenario as I understand it. I want to be sure of
> my legal position, detailed above, before the company rushes into
> submitting an H1b application while I'm out of the US. Hope fully
> someone can advise me on whether my understanding of scenario 2.
> is correct.
There is no nightmare scenario here. They are all OK.
- --
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