H4 - H1 Change of status with approved I797

[uvasireddy]

Hi,

My wife's H-1B stamping got rejected. She is coming here on H4 visa.

Her I-129 is still valid. Can we apply for change of status to H4-H1 using I-539 or

Do we need to file I-129 for Change of status. If we file new i-129 for COS does she come under cap exempt as FY2013 quota is filled.

Thnx

[pontevecchio]

The Employer needs to file a H1 petition again with COS from H4...I-129....

[uvasireddy]

does it come under cap exemption?

[pontevecchio]

YES.

[uvasireddy]

Her Case was back with USCIS as she got 221(g) during interview. My lawyer is saying filing amended petition is only option, but he is saying filing amended petition is not a good thing.

what should be the process to COS from H4 - H1B in this scenario?

Do we need to wait until USCIS review and get back to us with NOIR or NOID.?

Please advise,

[pontevecchio]

NOIR or NOID will not apply. They will either affirm or revoke the H1 petition. It is becoming increasingly complicated. It is a legal quandary as to whether one is still considered cap counted when the first H1 is revoked by USCIS. It may possibly depend on the reason. If considered cap counted a new sponsor can file a H1 petition with COS from H4 for her. Lawyers get paid to give answers. Write down all your questions and ask him for answers.