H1 India --> H1 Canceled -->H4 -->H1 Cap?


H1B_boy

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Hi All,

Let me tell you that you people are doing great job! by helping people. I salute you all...

Below is my question.

I am on H1B in USA.

My wife is in India but she has H1B stamped visa. Now if she resigns in India , her H1B visa will be canceled by her empolyeer.

And she will come to USA on H4.

Now once in USA , can she apply for H1B(to re-activate old H1B which was canceled by her employer in India)?.

Will she come under H1B cap?

She will not have latest pay stubs, then also H4 to H1 can be done?

Request you to please reply soon..as on this reply ..we will decide whether she resigns or not form India...

Thank you...

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Visa is a Physical stamp in the passport. It is not appropriate to call a petition a visa. Having said that she can have any sponsor file her H1 with COS as she has been cap counted, once she comes over in H1 status. NOTHING called Reactivation. It is always a new H1 petition, in this case non cap. I would counsel you to read the DOL information about H1 and rights and responsibilities. It will help both of you.

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Thanks pontevecchio for replying. Can you please clarify below....Sir Request you to please reply....

My wife was in USA earlier (few months back till June-2012) on H1B. As her project got over she went back to India. She has H1B visa stamped on her passport. So now if she resigns in India her employer will cancel her H1B visa. So in that case I am planning to get her on H4 to USA.

Once in USA, can she apply for COS or new petition for H1B through consultant. (can this be done even if H1B visa was canceled? It will have cancelled stamp on visa through her old employeer)

Or Will it come under cap ?

As you mentioned I am also checking in DOL...

Awaiting your reply....

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" her employer will cancel her H1B visa" You still do not get it. Her employer CANNOT do anything to the visa in her passport. How in Hades will the visa be cancelled. ? Only Uncle SAM can do that. secondly H1 is the domain of the employer. You cannot do anything. Please have her stay away from idiots. She can come in H4 status and get a H1 sponsor to file with COS for her.

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I am sorry but...her current employer will take her passport and will return with 'Cancelled' stamp on her visa.

So in that case also, as you mentioned above 'she can come in H4 status and get a H1 sponsor to file with COS for her.'

The above h1 you mention will come under cap or no?

Thank you..

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H1B visa cannot be cancelled by an employer, if they do that I think they will face severe consequences by US authorities. Only US consulate or Port of Entry authorities can cancel the visa as they are the entities who approved it. Employer can only put a request to USCIS to revoke the H1B petition if she quits job there.

She can even reuse the H1B visa until it's expiry if a different employer sponsors her H1. That H1B petition will be cap-exempt as she already cap-counted in the past. She is entitled for a total of 6 years in H1B status in US that includes all her previous and current employers.

Coming to H4 visa, it is completely unrelated to her previous H1B. She gets H4 visa based on your H1B merits. Once she gets her H4 visa she can come back to US and later on some employer can file her H1 with COS checked.

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  • 2 weeks later...

I am sorry but...her current employer will take her passport and will return with 'Cancelled' stamp on her visa. <<

This is a serious violation of her right. Her passport is her right and cannot be taken away without her approval. Only an authorized consulate can handle her passport.

If you notice, even the uscis cannot handle passports or write anything. Hence an H1B petition always needs copies and never the original passport.

No legal agreement can supersede this. The company can get her an appointment to a consulate, but cannot get her passport or write anything on the passport, ever.

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