apply for H4 to H1 without going through lottery

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apply for H4 to H1 without going through lottery

Im currently in the US on F1 OPT STEM extensionexpiring Jan 15th 2019.
I have applied for H4 EAD and it is under process.
I also have an H1B approved through consular processing. But i do not plan to work on H1B, hence im not planning to get it stamped. In this case, can i apply for a Change of Status from H4 to H1B through a different employer without going through the lottery again? That is, am i cap exempt ?

Asked on November 29, 2018 under Immigration Law, California

Answers:

SB Member California Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Since you have already had a H-1B visa petition approved and was counted in the lottery the next one you have filed through another employer can be filed as a transfer petition without having to be subject to the cap.  Just be sure to have the new employer include the approval notice of the current H-1B so that USCIS can see that you have been counted.


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