Can my sister apply for her H1B visa from the United States? 7 Answers as of February 13, 2011

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.

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Carlos E. Sandoval, P.A.
Carlos E. Sandoval, P.A. | Carlos Sandoval
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.
Answer Applies to: Florida
Replied: 2/13/2011
Feldman Feldman & Associates, PC
Feldman Feldman & Associates, PC | Lynne Feldman
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.
Answer Applies to: California
Replied: 1/26/2011
Law Office of Immigration & International Trade Law
Law Office of Immigration & International Trade Law | Linda Liang
File H1 premium and extend her visa in the meantime. If you get both of them, she will be able to stamp the H1B at any consulate as opposed to going back to India. Good luck!
Answer Applies to: Florida
Replied: 1/19/2011
Pauly P.A.
Pauly P.A. | Clemens W. Pauly
Needless to say, your sister and her future employer will need to immediately consult with an immigration lawyer as to the best strategy.

That being said, the employer may be best advised to start the process of filing for an H-1B visa without delay, since more than 60,000 H-1B visas have already been counted against the annual cap. If the cap should be reached then the next employment start date could only be October 1, 2011!

Whether or not the "no EOS and COS" annotation on her I-94 would indeed bar her from either getting an extension of stay (EOS) or change of status (COS) approved, I cannot say, and this would be one of the strategy considerations to be discussed with the immigration lawyer, but not the determinative one. The overall timing will also be influenced by very practical questions of obtaining foreign degree evaluations, prevailing wage determinations and certification of the Labor Condition Application. On that part it is noteworthy that the iCert system has experienced outages twice just this week alone, preventing companies from submitting new applications and thereby delaying the process.

One thing is quite certain: if your sister were to leave now, she would not be back from India within a month, even if the petition was filed within a week. The uploading of an approval notice from the respective Service Center to the KCC and then notification of the respective consulate will easily consume a week alone before the DS160 visa application can even be begun. Therefore, if a change of status can be achieved in this case, then this would appear to be the best option fr both the future employer and your sister.
Answer Applies to: Florida
Replied: 1/19/2011
Calderón Seguin PLC
Calderón Seguin PLC | Ofelia L. Calderon
If she received an extension of her tourist visa, she could file for a change of status to H1B. I must say that you might want to consider looking into the H1B right now as I understand that there have been somewhere around 59,000 H1B petitions approved so we will be reaching the cap at some point, possibly prior to the new fiscal year in October. If she is in status right now and has a willing employer, I see no reason not to apply for the change of status immediately with premium processing.
Answer Applies to: Virginia
Replied: 1/19/2011
    Nicastro Piscopo, APLC
    Nicastro Piscopo, APLC | Louis M. Piscopo
    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.
    Answer Applies to: California
    Replied: 1/19/2011
    Law Office of Christine Troy
    Law Office of Christine Troy | Christine Troy
    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.
    Answer Applies to: California
    Replied: 1/19/2011
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