Valid H1B- but appearing for H4 Visa interview

[rampingpong]

Hi,

My fiance works for one of the reputed consulting companies in India and she got a valid H1B visa. However, there is no onsite assignment yet and the visa has not been used. In this case, if she has to travel with me (I have a valid H1B) after the wedding, does she has to quit the job to appear for a H4 visa interview? She wants to continue with her job so eventually she might get an onsite assignment sooner, however she is planning to take a break for 2 months after the wedding to visit the US. My question is , is it legal to NOT quit the job and take her H4 visa interview? If she appears for the H4 visa interview what would be the status of her H1B visa? Will that be revoked? Can that H1B be used when she resumes work with the same company or new petition needs to be filed? Please provide your inputs.

Thanks

[pontevecchio]

Visa is a stamp and an approved H1 petition is a legal fact in the absence of fraud. She can apply for a H4 visa. Her Indian job is no business of the USA.

[rampingpong]

Thanks pontevecchio. Does that mean the consulate will not cancel/revoke her H1B visa unless requested by the employer? My understanding was only one type of visa would be applicable at any given time, and if she appears for H4, her H1B might be noted down as 'cancelled without prejudice' or something. Please correct me if i am wrong.

[pontevecchio]

The visa stamp belongs to the USA. Again visa is a stamp. H1 petition approval is just that.

[susheelv12]

I have read this post and I have similar situation. I have a concern. Can employer cancel the H1 VISA , if she resigns from the job. If it does, Can we use the same H1 , for changr of status from H4 to H1 and transfer of H1 when she gets another job in USA.

Thanks.

[susheelv12]

I have read this post and I have similar situation. I have a concern. Can employer cancel the H1 VISA , if she resigns from the job. If it does, Can we use the same H1 , for changr of status from H4 to H1 and transfer of H1 when she gets another job in USA.

Thanks.

[susheelv12]

I have read this post and I have similar situation. I have a concern. Can employer cancel the H1 VISA , if she resigns from the job. If it does, Can we use the same H1 , for changr of status from H4 to H1 and transfer of H1 when she gets another job in USA.

Thanks.

[pontevecchio]

One gets capped by having an employer file a H1 petition in April and on for a start date of October and on . In the absence of fraud the person is considered capped and entitled to a total of 6 years in H1 status over any period of time except that no individual period can be more than 3 years. VISA involves Uncle Sam. Basically, YES./ Please make sure you have her talk to a Lawyer.

[rampingpong]

@pontevecchio,

If she travels to US in H4 without resigning the job , and if there is an onsite opportunity from the same Indian employer in few months ie.,when she is still in US, Does she have to go back to India and get the H1B stamped again to start work again? can the change of status from H4 to H1 be done while she is in US as there is no employer change ? Is there a specific time period one should remain in H4 before applying for a change of status to H1? Please share your thoughts.

[pontevecchio]

That would be up to the employer. The company can file her H1 petition again with COS.

[rampingpong]

@pontevecchio,

Thanks for your input.