COS from H4 to H1 possible anytime without coming under cap?

[pvac26]

Hi,

I have this weird question. Primary is on H-1B and the dependent is on H4. Dependent's EAD is valid until June-30-2020. Primary's H-1B has successfully got extended for the next 3 years but H4 extension is still in pending with USCIS. Please note that Primary has the approved I-140 and has been on H-1B for more than 8 years (meaning 6 years are over). Questions are as below,

1). Is there a provision or possibility to apply for change of status from H4 to H-1B for the Dependent ? 

1. IF so, does she need to have a job in hand to do this?
2. Does this not come under 60,000 yearly quota/CAP?
3. Doesn't she need to go through Lottery system?

Thank you for any clarifications ...it will be very helpful.

[User099]

She will have to go thought the lottery for her to qualify for H1. Just having an H4 doesn't qualify her for a H1.

[shekar11#]

On 3/5/2020 at 9:07 AM, pvac26 said:

Hi,

I have this weird question. Primary is on H-1B and the dependent is on H4. Dependent's EAD is valid until June-30-2020. Primary's H-1B has successfully got extended for the next 3 years but H4 extension is still in pending with USCIS. Please note that Primary has the approved I-140 and has been on H-1B for more than 8 years (meaning 6 years are over). Questions are as below,

1). Is there a provision or possibility to apply for change of status from H4 to H-1B for the Dependent ? 

1. IF so, does she need to have a job in hand to do this?
2. Does this not come under 60,000 yearly quota/CAP?
3. Doesn't she need to go through Lottery system?

Thank you for any clarifications ...it will be very helpful.

1. Yes.

2. Yes.

3. She needs to go through lottery if this is the first time applying for H-1.

[pvac26]

On 3/6/2020 at 2:11 PM, shekar11# said:

1. Yes.

2. Yes.

3. She needs to go through lottery if this is the first time applying for H-1.

Thank you Shekar. Here is the next question/scenario I have ...kindly clarify.

She never applied for H-1B and has never tried for lottery.

If she (her Employer) registers paying $10 then if her application gets picked in the lottery......then if she does not submit the remaining docs though she got selected in the lottery.............then can she file for COS to H-1B later in the year or some other time without worrying about the one more lottery/quota?

[JoeF]

She doesn't file anything. The H1 is the employer's petition.

The employer would actually have to file the H1 petition and it would have to get approved. And she has to start working on the H1 from Oct. 1. Only then is she considered counted in the quota.

Edited March 9, 2020 by JoeF

[shekar11#]

On 3/9/2020 at 2:17 PM, pvac26 said:

Thank you Shekar. Here is the next question/scenario I have ...kindly clarify.

She never applied for H-1B and has never tried for lottery.

If she (her Employer) registers paying $10 then if her application gets picked in the lottery......then if she does not submit the remaining docs though she got selected in the lottery.............then can she file for COS to H-1B later in the year or some other time without worrying about the one more lottery/quota?

That is not right. Once she is selected USCIS gives a certain amount of time like 30 days to submit the docs or else you will lose the spot and have to go through lottery again next year.

[pvac26]

On 3/10/2020 at 2:31 PM, shekar11# said:

That is not right. Once she is selected USCIS gives a certain amount of time like 30 days to submit the docs or else you will lose the spot and have to go through lottery again next year.

Ohh okay. Thank you Shekar