H4 to H1 -- Visa cancelled and back to H4 -- Want to come back to H1

[sherrymax]

Hi,

I am posting this for my friend who is facing an issue in visa status. She came to the US on H4 visa. She found some employer who sponsored a new H1B visa for her. Three months after H1B approval, USCIS send a letter to her employer notifying issues in the H1B application and the H1B visa is now revoked/cancelled. She had to go back to her H4 visa status.

1. If she applies for H1 again, does she have to wait for the H1B cap opening timeframe. Since she already got a petition approved, will she be exempted from the H1B cap?

2. As per her employer, she apply for an H1B transfer once she switches to H4. I was wondering how she can do an H1B transfer since the whole H1B visa is cancelled now?

3. Will she be automatically moved to H4 visa category once the H1 visa is cancelled? Or does her spouse has to submit any forms to keep her under H4.

Please advise.

Thanks,

Max.

[wiweq]

1. If she applies for H1 again, does she have to wait for the H1B cap opening timeframe. Since she already got a petition approved, will she be exempted from the H1B cap?

=> She would be exempted to the cap. As it happened to me too, I was able to start working on H1b receipt. Better to ask company's HR/ attorney.

2. As per her employer, she apply for an H1B transfer once she switches to H4. I was wondering how she can do an H1B transfer since the whole H1B visa is cancelled now?

=> Nothing is called H1b transfer. When you change employer H1b to H1b, this is called H1b visa extension. The same is mentioned on new I797 too as "visa extension is approved". In case of H4 to H1b, COS approves and same is mentioned on H1b I797 too. H1b visa is never cancelled forever; you can use it up to 6 years anytime if you have an employer ready to file H1b for you.

3. Will she be automatically moved to H4 visa category once the H1 visa is cancelled? Or does her spouse has to submit any forms to keep her under H4.

=> If she is staying in US, she needs to file COS (form I 539) to come back on H4.