powburn

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.

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.

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.

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.

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. Regardless, I suspect I'd be
technically out of status and that's not a good idea at all these days.

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?

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.

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.

Ingo Pakleppa (see Web site for email)

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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.

- --
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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powburn

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> Hash: SHA1
>
> 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.
>
> - --
> Remember, I am strictly a layperson without any legal training. I
> encourage
> everybody to seek competent legal counsel rather than relying on
> usenet
> newsgroups.
>
> Please visit my new FAQ at http://www.kkeane.com (always under
> construction)
>
> My email address in usenet posts is now invalid for spam protection.
> See
> my Web site for information on how to contact me.
>
> Please feel free to enjoy some of my photographs at my Web site
> http://www.ingopakleppa.com ! Comments are welcome.
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> Comment: Using GnuPG with Mozilla - http://enigmail.mozdev.org
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Thanks very much for the information, I'm glad it's not as bad as
it seemed.

> Correct, as long as you return after October 1 (I believe you are
> allowed to enter ten days earlier, actually).

Why would I have to return after October 1, or even 10 days earlier? I
haven't seen anything on the Consulate web site that indicates this and
presumed I could return to the US the same day I received my passport
with the new Visa. I presume this would be the case for a new H-1B Visa
as part of the 2005-2006 quota, rather than the renewal of my H-4 Visa
since the quota only applies to new applications.

> Wrong. The approval of a different class cancels your existing
> *status* (if you had one), but not your visa.

I knew the new Approval Notice would cancel something...

> 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.

Yes, ideally, but somehow I can't see the company and their lawyers
working that fast or efficiently, unfortunately

> The I-94 that was attached to the H-1B approval becomes invalid
> by you by leaving the USA.

I take it that the H-1B Approval Notice itself is still valid, even if
the new I-94 at the bottom isn't and that I could still use it to obtain
an H1B Visa at the London Consulate?

> 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).

If I already had an H-1B Approval Notice, wouldn't it just be a Change
of Status application, form I-539 I think, rather than re-submitting
the H-1B paperwork again? Although I notice one of the I-129 classes
is called "H-1B Change of status in the U.S." I'm guessing this is the
one you mean.

Wouldn't premium processing get around the long timescale too?
Well, to a degree anyway.

> 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.

Do you have any idea how close to quota the H-1B's are for 2005-2006 or
exactly where I could find this out?
Is the quota for 2004-2005 already used?
I presume premium processing could be used for this late application
too, which would surely help.

Thanks again for your advice!

Ingo Pakleppa (see Web site for email)

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powburn wrote:
> powburn wrote:

>> Correct, as long as you return after October 1 (I believe you are
>> allowed to enter ten days earlier, actually).
>
> Why would I have to return after October 1, or even 10 days earlier? I
> haven't seen anything on the Consulate web site that indicates this and
> presumed I could return to the US the same day I received my passport
> with the new Visa. I presume this would be the case for a new H-1B Visa
> as part of the 2005-2006 quota, rather than the renewal of my H-4 Visa
> since the quota only applies to new applications.

The reason is that your H-1B would only be approved effective October 1,
because of the quota. Until that date, you are not entitled to H-1B
status. So if you tried to go to the USA too early, you would only be
admitted as H-4, and not be allowed to work.

>> The I-94 that was attached to the H-1B approval becomes invalid
>> by you by leaving the USA.
>
> I take it that the H-1B Approval Notice itself is still valid, even if
> the new I-94 at the bottom isn't and that I could still use it to obtain
> an H1B Visa at the London Consulate?

Yes. An H-1B approval (if you are in the US) actually is two approvals
rolled into one document. First, the employer filed a petition on your
behalf. The petition does not convey any immigration benefit at all, but
it authorizes the consulate to issue a visa for you, and it also is,
*together with your I-94* your work authorization.

The second approval is for a change of status. That is documented with
the attached I-94. When the I-94 becomes invalid, for instance by you
leaving the USA, or even if there was no I-94 attached at all (meaning,
they denied your change of status for some reason or another), the
petition still remains valid.




>> 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).
>>
> If I already had an H-1B Approval Notice, wouldn't it just be a Change
> of Status application, form I-539 I think, rather than re-submitting
> the H-1B paperwork again? Although I notice one of the I-129 classes
> is called "H-1B Change of status in the U.S." I'm guessing this is the
> one you mean.

Change to H-1B is an exception. I agree that it would be logical to use
the I-539 in your situation, but it's not the way USCIS expects it to be
filed. A change to H-1B must be filed on form I-129.

> Wouldn't premium processing get around the long timescale too?
> Well, to a degree anyway.

True.

>
>> 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.
>
> Do you have any idea how close to quota the H-1B's are for 2005-2006 or
> exactly where I could find this out?

I expect that USCIS will make an announcement within the next few weeks.
I think I heard somebody mention that recently, they reached around 40k
cases, out of a quota of 65k (+20k for US Master's). My guess would be
that the quota will be reached somewhere between September and December.
If I was to place a bet on a specific date, I'd put it on November 14.
But of course, that's just guesswork...

> Is the quota for 2004-2005 already used?

Yes, it's long gone. That quota was exhausted October 1, 2004. The only
exception is people who have a US Master's degree. That class has a
separate 20k quota, and is still available.

> I presume premium processing could be used for this late application
> too, which would surely help.

No, Premium Processing wouldn't help, at least if they handled it the
same as in previous years. The cutoff went by filing date, not by
approval date.


- --
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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