Impact of B1 on H1

[amrinder1986in]

A person is currently on B1 in USA and has spent over 4 months. His port of entry is 6 months(late Feb). His company in India wants him to come back and apply for H1 in feb. 2 concerns

1) How advisable is it to spend around 5+ months on B1 visa
2) Is there any impact on H1 application, considering that he just came back 5+ months on B1
3) Is around Feb too late to apply for this year's H1 visa

Other option for him is to come back right now(4+ months) and apply for H1. Does that make any difference, spending 4+ or 5+ months on B1.

Please reply back soon

[shervin143]

1) How advisable is it to spend around 5+ months on B1 visa
>>> No issues as long as you return back before the I-94 (Associated with B1) expires.

2) Is there any impact on H1 application, considering that he just came back 5+ months on B1
>>> No issues as long as there is no illegal stay.

3) Is around Feb too late to apply for this year's H1 visa
>>> No one can predict. If the CAP gets closed by Feb, then he will have to wait until April to apply the H1B is 2012 quota. In such case, the start date will be Oct 1st 2011. He doesn't need to return back to his home country to apply for the H1B. The company can file the H1B now (When he is already in U.S) as a consular process (Filing the H1B as a COS from B1 will have issues/question later and it is not advisable).

Other option for him is to come back right now(4+ months) and apply for H1. Does that make any difference, spending 4+ or 5+ months on B1.
>>> No difference.

[amrinder1986in]

Thanks a lot for your reply shervin143. Can you please answer few more doubts to make it crystal clear.

Does Consular process also require him to visit his country again, give visa interview and come back.

In that case, what advantage does it give over the other option "returning back and filing h1 and coming back"

how long does consular processing take and can it be clubbed with premium processing?

if he applies for consular processing now, can he goto india in feb, stay there for a month(some personal commitments), then come back sometime in march?

[shervin143]

Does Consular process also require him to visit his country again, give visa interview and come back.
>>> That is exactly what consular process means. You go for the visa interview after the H1B petition gets approved and return back on H1B visa which will put you into H1B status allowing you to work for the H1B employer.

In that case, what advantage does it give over the other option "returning back and filing h1 and coming back"
>>> Nothing. You can file the H1B as a consular process when you are already in U.S. You don't need to go back home to file it. It makes no difference.

how long does consular processing take and can it be clubbed with premium processing?
>>> Same as any H1B. It takes 2-4 months by normal process and 15 days by premium.

if he applies for consular processing now, can he goto india in feb, stay there for a month(some personal commitments), then come back sometime in march?
>>> Possible. In which visa will he return back? B1 again? It is not advisable to travel when the petition is applied as a COS. For consular process you can travel since the status change will not happen automatically upon approval of the petition.

[amrinder1986in]

Thanks again shervin143. I believe i framed the last question incorrectly. I would rephrase it

If he applies for Consular processing now(lets say premium processing), does he have to choose his H1 visa interview date, can he schedule the interview as per his plans of returning to india, or is it not in his hands and he has to adjust his return plans as per the visa interview date.

Secondly, after attending the interview lets say he gets the H1 visa, can he stay back for a month in India and then travel on H1 visa

[shervin143]

If he applies for Consular processing now(lets say premium processing), does he have to choose his H1 visa interview date, can he schedule the interview as per his plans of returning to india, or is it not in his hands and he has to adjust his return plans as per the visa interview date.
>>> He can take the interview date anytime he wants (Before the petition expiry date). He can even decide not to go for interview at all (If he decides not to work in H1B status at all). The point here is, if he want to work in H1B status, then he should go for the H1B visa interview and when it gets approved, he should return back to U.S in H1B visa. Unless that happens, he cannot work for the H1B employer in H1B status (That is what a consular process means).

Secondly, after attending the interview lets say he gets the H1 visa, can he stay back for a month in India and then travel on H1 visa.
>>> That is up to him. He can even decide not to travel in that visa at all. Getting a visa stamped doesn't force anyone to use that visa.