Q My wife is on an H-4 visa and will be filing for her H-1B in the upcoming quota for 2008. However she needs to travel to India, after filing, to attend her sister’s wedding. Is that okay?

AThere is an annual quota limit on the number of H-1B visas that can be issued during each fiscal year. The annual quota limit on new H-1B visas is 65,000, typically referred to as the “general quota,” and an additional 20,000 new H-1B visas are made available to foreign nationals who hold a masters degree or higher from a U.S. institution, typically referred to as the “masters quota.” The U.S. Citizenship and Immigration Services’ fiscal year runs from October 1 to September 30, and H-1B applications can be filed up to six months in advance of the start date requested. Thus, the H-1B filing period for each new fiscal year begins on April 1 for applications requesting start dates of October 1.

Secondly, your wife can come and go on the H-4 visa until she is eligible to start work on the H-1B visa.
However, since she will leave the country after filing the H-1B visa and reenter on an H-4, it is better to request consular notification so that she can get the visa stamp for H-1B prior to starting work on the H-1B visa. She will have to leave the U.S., travel to her home country, get the visa stamp for the H-1, and then resume working. If she files the petition requesting change of status, the petition will serve two purposes: (1) petition approval in H-1 category, and (2) change of status from H-4 to H-1. These are two separate and distinct benefits requested in one application. By leaving the U.S., she remains eligible for petition approval for the H-1B category, however will lose out on the change of status part. Therefore, she must leave the country to get the visa stamp for H-1B visa status.

Given the fact that visa numbers ran out on April 2, 2007 (the second day of filing last year), and the same number of applications are expected to be filed this year, it is best to proceed this way.

Q I just got a green card, but I have a lot of unfinished business in my home country. I could not sell my property in time, and my children are finishing school. Can I leave the U.S. without jeopardizing my green card status?

A You can stay out of the U.S. for less than six months about two times without any problem. As long as you can document your reasons for stay out of the country, the Immigration Inspector at the airport most likely will not give you any trouble. If you need additional time, however, you should request permission to stay out of the country. Such permissions are granted as a matter of routine and are good for two years. You can stay out of the country for up to two years. However, the permission request must be filed before leaving the country and you must leave only after having received the official receipt from Immigration Services. If for some reason the application is rejected (for lack of documentation, etc.), it will count against you. Usually, Immigration Services grants two such permissions without trouble. Essentially, one can have four years to handle any unfinished business and still maintain permanent residency status. I have, in the past, helped people get permission for a third time as well; however, this is done only in rare and extreme cases.

Madan Ahluwalia has been practicing law since 1995. He can be reached at madan.ahluwalia@ahluwalia-law.com. You can also visit his website at www.ahluwlia-law.com.

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