I797 valid till 2015- Need to travel to India in Mar 2013


I have my I797 valid till Sep 2015. I need to go to India in March 2013. What if my visa is rejected when I go for stamping? Can I come to US on H4 and apply fro H1 again? WIll it be a cap-exempt H1? Also how soon can I apply for H4 if my H1 is rejected.

Please help. I am really tensed!!

Thank you in advance.!!

Can I come to US on H4 and apply fro H1 again? - YES

WIll it be a cap-exempt H1? - YES

how soon can I apply for H4 if my H1 is rejected - as soon as you want to

Just relax, if you have proper documentation H1 stamping should not be a problem

Hi Ankit,

Thank you so much for the reply. But I just have one more question. Say in case my H1 is rejected does it not mean that my I797 is no more valid. I am sorry if this is a very silly question. I am not aware of the terminology of I797 adn H1B stamping.

And if H1B rejection means I797 termination, then how would I fall under cap exempt when I want to apply for H1 from H4 when I come to US on H4?? Please clarify.

Thanks in advance.

when your visa is rejected there is still a considerable amount of time before i797 gets revoked. you can get another employer to file h1b against the count if you get that approval then you are good. furthermore you will usually get RFE first unless you have done some fraud and are caught during the visa interview. RFE response time is also around 2 months then the decision time is again 2-6 months. Even if RFE reply is not satisfactory uscis will send noir(notice of intent of revocation) to your employer which will still give your emoployer about 60 days of time to justify the case. so you see you will have a lot of time in any case to apply for either a new h1 or your h4. Again I would suggest relax and try to have proper documentation so that h1 is approved in the first go.

also see Saurabh’s answer on your other question