Never worked on H1B - Can I apply for COS


jithsh1b

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I was picked in 2013 H1 lottery filed by employer I was working for at that time on OPT. Had to relocate before Oct so resigned in Aug while still on OPT and applied for COS to H4. Now I have a new offer. Can I still be cap exempt and use previously approved H1 and get it changed to under new employer?

If I can then can I apply for COS while staying in the US? Or can I start working without a COS since my application for COS to H4 is still pending. So can I just withdraw my current application once H1 is approved and start working?

Thanks

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I was picked in 2013 H1 lottery filed by employer I was working for at that time on OPT. Had to relocate before Oct so resigned in Aug while still on OPT and applied for COS to H4. Now I have a new offer. Can I still be cap exempt and use previously approved H1 and get it changed to under new employer?

If I can then can I apply for COS while staying in the US? Or can I start working without a COS since my application for COS to H4 is still pending. So can I just withdraw my current application once H1 is approved and start working?

Thanks

Yes, you are cap exempted. Your new employer has to apply for COS. But, you cannot start working before H1B COS approval.

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Thank you jairichi and rahul412. My COS to H4 that was applied in Sept is still pending. If my H1 gets approved before COS to H4, can I just withdraw my COS to H4 and start working? This part is still not clear.

You can request for withdrawal of your H4 petition after H1B approval. But, most of the time USCIS will not do so and your COS to H4 will get approved. If H4 gets approved after H1B approval you will be considered on H4 status according to last action rule. To keep working for employer on H1B you have to exit and enter US with a valid H1B visa or employer applies for COS from H4 to H1B and pays H1B fee again.

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