H1B approved, OPT expired, Laid off during Cap-Gap, Transfer to H4 and back?

[joeforeigner]

This appears to be a common problem and the answer will be useful to many forum users. However, I could not find a definitive answer on the Internet.

 

My wife is currently on cap-gap after her F1 OPT expired this year in June 2013. Her H1B was approved in April this year in the quota for advanced degree holders. This H1B was to be activated on October 1st. She has been in the country all this time.

 

Unfortunately she got laid off last week. It appears that as long as she can find another employer who can file for an H1B before October 1st, she will be fine (i.e., still cap-exempt).
 

However, if she is unable to find another employer to file for her H1B before October 1st:
 

(1) Can she file for an H4 at any time before October 1st to remain in the country?
(2) If she changes her status to H4 before October 1st and later files for an H1B
*after* October 1st (an H4 -> H1B adjustment of status), will she still be H1B cap-exempt?

 

Thanks in advance for your help.

[jairichi]

This appears to be a common problem and the answer will be useful to many forum users. However, I could not find a definitive answer on the Internet.

 

My wife is currently on cap-gap after her F1 OPT expired this year in June 2013. Her H1B was approved in April this year in the quota for advanced degree holders. This H1B was to be activated on October 1st. She has been in the country all this time.

 

Unfortunately she got laid off last week. It appears that as long as she can find another employer who can file for an H1B before October 1st, she will be fine (i.e., still cap-exempt).

 

However, if she is unable to find another employer to file for her H1B before October 1st:

 

(1) Can she file for an H4 at any time before October 1st to remain in the country?

(2) If she changes her status to H4 before October 1st and later files for an H1B

*after* October 1st (an H4 -> H1B adjustment of status), will she still be H1B cap-exempt?

 

Thanks in advance for your help.

(1) Yes, she can.

(2) Yes, she will be cap exempt

[elango1234]

How is that possibly Yes to second question. if she files for H1 B after October 1st, by that time employer would ahve  withdrawn the previously approved H1-B petition.

In that case, is the New H1-B would be consider under H1B cap-exempt ?

[jairichi]

How is that possibly Yes to second question. if she files for H1 B after October 1st, by that time employer would ahve  withdrawn the previously approved H1-B petition.

In that case, is the New H1-B would be consider under H1B cap-exempt ?

Once counted against cap and have not utilized the max allowed stay of 6 years any future H1B petitions are cap exempt. Employer revoking H1B petition is irrelevant.