QUESTION
Can my sister apply for her H1B visa from the United States?
Asked on Jan 19th, 2011 on Immigration - California
More details to this question:
I am a regular viewer of your site. It would be really great if you can suggest anything in my sister's case that I am going to mention below. My sister got her B2 10 years Visa in last year through us. She came in the US for 6 months in last summer. As her husband is doing his MBA, we had invited her to stay with us for 6 months in Dec 2010 as we had our son's birthday, our 10th years of anniversary and then we had plan to visit places like Vegas and Florida when my son gets Mid Winter Break in end of Feb and Spring Break in April. When she came in for the 2nd time, she was questioned by an Immigration Supervisor for the purpose of her visit. And she only got 2 months instead of 6 months of her stay with no EOS and COS in her I94.
We are now planning to file an extension for another 3.5 months. If she gets her extension, is it ok to file for her H1b from US? How are the chances that she will get her H1 approval? Or, should she file her H1 in premium processing without filing for an extension now? Or, is it suggested for her to go back to India and file an H1b premium processing right away , so that she can come back in USA with H1b in a month or two? She already got an employer for H1 sponsorship and the employer wants her to be back within a month if she goes back to India. If you can suggest us the best way to file her H1 would be very much appreciated.
4 ANSWERS
She can file for the extension and later apply for a change of status to H-1B. The only thing is that she can only apply for the change of status until April 1, and start working after October 1st.
Answered on Feb 13th, 2011 at 3:58 PM
Immigration and Naturalization Attorney serving San Diego, CA
Partner at
Feldman Feldman & Associates, PC
3 Awards
Assuming she is still in status AND THERE ARE STILL H'S LEFT (almost gone for this year), she may file while she is here. She would of course need to have an employer sponsor and be qualified for the status.
If you want help and have an employer, contact me ASAP. If you file an extension they will be gone.
Answered on Jan 26th, 2011 at 5:13 PM
Immigration and Naturalization Attorney serving San Francisco, CA
at
The Law Office of Christine Troy
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Based on the information you provided, I do not recommend that she files either for an extension of B status OR an change of status to H. I do recommend that she instead files for an H-1B for consular processing and then applies for the H visa at her US consulate in India. Realizing that these consulates are quite difficult, the annotations in her passport mean that the officer in question felt that she may have improper intent to change or extend status upon entry. While I believe she is still legally able to do so, it could cause issues with DHS adjudication. Additionally, if the H is unsuccessful for some reason, then DHS may decide not to allow her further B entry.
Answered on Jan 19th, 2011 at 1:43 PM
Immigration Law Attorney serving Costa Mesa, CA
Partner at
Law Offices of Louis M. Piscopo, APLC
2 Awards
First, be aware that based on the facts you presented it is unlikely that your sister will be granted an extension of her current B1/B2 visa.
Second, the cap on the number of H1B visas that can be issued this year is close to being reached. Therefore, your sister needs to be petitioned soon or she will have to wait until October 2011 for the new H1B visas to be available.
If you sister files for a change of status to H1B before her current B2 status expires she can change her status from B to H1B without leaving the U.S. With premium processing this could take less than one month. If she instead wants to return to India and apply for an H1B visa at the consulate, you can expect her to have to be outside the U.S. for 2 to 6 months.
Answered on Jan 19th, 2011 at 1:43 PM