My family member needs to go to US to be with her husband who resides on H1-B. She is trying to get an onsite deputation through her present employer in India (her first priority). She already has an uncapped H1-B but the project delay / project uncertainty will linger till at least till end of this year. At best, she guesses she will be able to file for H1-B, if at all, not before start of Q4 2023.
As an alternative, she is considering filing an H4 visa and go to US and stay with her husband. She intends to file for H4 EAD eventually and find a new job (second priority).
However, her dilemma is that if she indeed gets an onsite deputation and her Indian employer files for H1-B, any standing H4 visa in the US system may raise concerns around intent. Hence, I have the following queries:
Can she apply for H1B / H4 concurrently?
Will there be any scrutiny around this and does this affect the H1B processing?
Is there any violation of intent as H1-B is for employment and H4 is dependent?
If she intend to enter the US in H4 status, she will need to apply for H4 visa based on the spouse H1B I-797.
Once she is in the US, her H1B employer can file H1B petition with change of status from H4 to H1B.
Thanks for the revert. I have one more query.
Suppose she files for H4 from India to come to US. During the approval process, if her Company also files for H1B (when she is still in India and not in the US), then does the H1B process get affected since there is a live H4 application pending? Also, will it be legally allowed to file for a H1B when there is a pending H4 application ?
H4 will not be a petition, it will be a visa application. The H1B though will be a petition and no the H4 visa application should not be impacted by a pending H1B petition.
Note that if she is in India while her H1B petition is processed and approved, it will be approved with consular processing. Her employer can file an H1B amendment later on after she enter the US on H4 and apply for change of status from H4 to H1B.
In any case discuss your plan with the employer’s immigration lawyer and plan accordingly.