If I have an approved I-140 but have been on an H4 since for a year due to personal reasons and now wish to apply for H1B with the same employer, will be counted against the CAP?

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If I have an approved I-140 but have been on an H4 since for a year due to personal reasons and now wish to apply for H1B with the same employer, will be counted against the CAP?

My employer since he has not revoked my petition.

Asked on January 21, 2015 under Immigration Law, Texas

Answers:

SB Member California Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

The I-140 and H-1B are not connected necessarily.  THe I-140 simply gives you an approved immigrant visa petition but you still have to either apply for adjustment of status if you are in the US lawfully or apply for a US visa abroad in order to activate that immigrant status.  In the meantime the fact that you are in H-1B status is perfectly normal.  If you are already in valid H-1B status, getting an extension of that status or transferring to another employer will not cause you to be subject to the H-1B quota.


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