Converting from H4 to H1 while H4 extension in progress

[mchguy]

Hello -

 

My H1-B and my spouse's H-4 visa extensions are in progress and are in the 'Initial Review' state. At this time, can my spouse apply for an H-1 B cap exempt visa through non-profit research organization? Will this trigger an RFE on either H-4 extension or H-1 B cap exempt visa transfer?

 

Also, can the H-1 B cap exempt visa through non-profit research organization done via COS?

 

Appreciate your inputs.

 

Thank you

Vijay

[jairichi]

 

Hello -

 

My H1-B and my spouse's H-4 visa extensions are in progress and are in the 'Initial Review' state. At this time, can my spouse apply for an H-1 B cap exempt visa through non-profit research organization? Will this trigger an RFE on either H-4 extension or H-1 B cap exempt visa transfer?

 

Also, can the H-1 B cap exempt visa through non-profit research organization done via COS?

 

Appreciate your inputs.

 

Thank you

Vijay

 

Yes, her employer can file a cap exempt H1B petition. It will not trigger any RFE. Better to enclose her H4 extension receipt notice with H1B application.

Yes, it would be considered as COS if your spouse is currently in US.

[mchguy]

Thank you Jairichi.

 

Would it be the same for a capped H1?

[jairichi]

Thank you Jairichi.

 

Would it be the same for a capped H1?

Yes, it is the same. But, care must be taken about what gets approved and when. If H1B gets approved after her H4 extension approval she is fine. But, if her H4 extension gets approved after her H1B approval then as per last action rule she will go back to H4 status again. She needs to informs her attorney from non-profit organization about her H4 extension being in progress.