H4 to H1-b visa , when can I start working?

[lavanya_7]

I got my H1-B visa on June 2005 , I came to india on Jan 2009 . From Jan 2009 till now I have been staying in India , bcoz I was taking care of my new born daughter, now she is grown up and now I am planning to start working in US. Right now I got my H4 visa .

I came to know through someone that H1-B filing for this year was over in Jan 2011, so if I need to file a new H1-b , I have to file now and I will be eligible to work after Oct 1 this year. Is it true ? Is it not possible that a company files for a new H1-B under premium processing and I start working after 2 weeks of filing ? I don't want to wait that long(Oct 1) to work , I have few oppurinities coming up where I may get selected.

I have stayed in india from Jan 2009 till APril 2011. Now I am on H4 visa in US. Can I get a extension of my previous H1-B visa filed on June 2005?

[raj_ky]

Well if you are applying within the first 6 years of previous application then you can apply new H1 and start working after approval. In that case you will get the time remaining in six year period. You can also recapture the time spent in india(you need to consult a lawyer)

If you apply for new H1 without cap exemption then you will get a fresh six year period starting oct.

[Attorney_20]

Generally, you would not have to be counted against the H1B numerical cap and could begin working upon the approval of a new H1B petition filed on your behalf if you were previously counted against the cap. If you do have a cap-subject petition filed on your behalf, you would be eligible for a full 6 years of H1B status.

Normally, if your are outside the U.S. for more than 1 year, that would reset eligibility for the 6 year limit and subject you to the numerical cap. Depending on specific circumstances, you could potentially opt out of that and use up the unused remainder of the 6 years and not be subject to the cap. This is something you should discuss in more detail with an immigration attorney.

You and your employer may want to premium process the Change of Status H1B petition to expedite the case. If approved, you will be able to apply for an H1B visa and, if obtained, enter the U.S. in H1B status. Even if you entered on your H-4 visa, you would probably still have to wait until the H1B petition is approved to begin working based on USCIS' current policy guidance on H1B portability. (A recent MurthyBulletin article discussing this issue can be found at http://murthy.com/news/n_portpo.html)