Can you go for COS from H4 to H1B within India only??

USA H1B Visa
1

Hi

I would really need help on a query that I have regarding my case.



I was in company A, where my H1B petition was filed in April 2009. I received approval for my petition in July 2009. However, due to some reasons, I could not go for stamping in 2009 or later. I have also been to US on B1 previously in 2008 and 2009, and thereby, hold a valid B1 visa.



I switched job in 2011, and moved to company B. I am working with company B since then. Here are the three scenarios for which I need an answer:



1.       My spouse’s company is offering him H1B for US. I am planning to go with him, by taking a H4 stamping on my passport. Will this cancel my B1 visa that I already hold?



2.       I am also trying to ask my company B for H1B opportunities since I have heard that my petition would be cap exempt for six years. Hence, I can go for stamping, provided company B files a new petition for me. Am I correct in assuming this? As of now, my EAC**** receipt number on USCIS page says the petition has expired.



3.       If I go ahead with H4 stamping as of now (as mentioned in point 1 above), and after H4 stamping, Company B is able to offer me a project / role in US, will it be possible for me to go for COS in India itself? Or do I need to travel to US on H4, wait for a certain period and then file a COS?



Any help / suggestion would be really helpful.
2

  1. H4 stamp and B1 stamp can peacefully co-exist on your passport. No issues with that.

  2. Company B can file a cap-exempt petition (which means you don’t need to go thru lottery) for you. Once approved, if you want to travel on H1, you need to appear for stamping with that petition.

  3. CoS is applicable only when you have a status. For which you need to be in US. Even though you have a H4 stamping, if you are in India, you’ll not have a valid status. This means Company B has to file a petition with consular processing if you are in India. For CoS, you will need to travel to US, wait for certain period and then get a sponsor to file a CoS petition.

3

Thanks for your answer.

Another point that I need to know for answer 2 is that if company B files petition for me (which would be cap-exempt), how much tine would it take for the petition approval to come?? Any guesses?? I ask this because normal petition approval comes anytime after a minimum of 7-8 weeks from acceptance at USCIS, but they are for lottery petitions, whereas this would be cap-exempt petition.

A question to answer 3 is that how different is a petition with normal filing as stated in answer 2 when compared with petition with consular processing.

Even if I go to US on H4, how many days do I need to wait in order to apply for COS from H4 to H1? Somewhere I read that you need to wait for a minimum of 30 days before you can apply for COS. Is it true??
Also, can I ask my company B to be my sponsor and ask them to file for a change in status from India only?? Or do I need to find a sponsor in US only?? Is it required to travel to India for H1 stamping in case COS is approved??

Shall be really grateful on clarifications on this.

4

The timeline for petition processing is ideally the same for cap-exempt as well lottery selected petitions. But practically it is faster.

USCIS will evaluate both petitions using similar measures - the only difference for the CoS petition being that with the approved petition you will also get an I-94.

Frankly, there is no stipulated number of days that you need to wait. A minimum of 30 days is recommended but many have applied even after a week after arrival in US.
Yes, company B can apply for CoS petition when you are in India. But it is recommended that you get off their payroll from India, and their US division will apply for a CoS petition for you in the US. If a CoS petition is approved, it comes with an I-94 so you can start working from the approval date mentioned in the petition. You don’t need to go back to India for stamping, but the next time you go to India, you will need to get stamping.