H1 petition for first 2.5 years expired. Can i use the remaining?

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I had a H1 B visa and petition valid from 2016 October till   2019 June and it is expired without using them. Now i am in US on H4 as dependent to my wife's H1b.

Can i do COS from my H4 to H1 B, if i get an offer from employer and willing to do the COS?  do i need to go through the lottery to get H1B or just the COS can be done as part of the  CAP exempt and i can reuse the H1B's issued in 2016 ?

Please let me know and it will be really helpful in my current situation.





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  • 6 months later...
On 8/26/2019 at 8:14 AM, pontevecchio said:

It has been suggested in this website that getting a H1 visa stamp makes you officially cap counted and one should be able to be considered non cap.

But I would consult the firm of Murthy about the specifics and then look for a job . 


Yes you are right !! i consulted Murthy firm lawyer and confirmed that i ll be considered non cap and no need to go H1b lottery .

Also the attorney told me that i need to wait for my H1b and COS to be approved to commence my employment.

But US employer is asking me to join the work once we file the H1B transfer upon receipt and not to wait till it is approved.

Can you please let me know which is legally correct one? 

Thanks in advance,


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  • 4 months later...


Thanks in advance for the valuable suggestions you have provided till now. If i resign my employer who has sponsored my h1b petition is there anything he can revoke as i am here in USA in H4 visa  on sabbatical and waiting for an offer to do a COS to H1 visa.

As my sabbatical comes to an end, i need to resign and need to know if my H1 sponsor can revoke my H1 petition approved in 2016.

Kind regards,



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