Can I apply for H1 visa while in USA on B1 / B2 visa

Can one file for H1 petition while in USA on Visitors visa. I have already been to USA previously on H1b visa from Nov 2009 to Jan 2010.



Do you mean enter US on B-1/2 and then file H-1 petition w/ COS?

It is doable but risky. USCIS can question your intent of using B-1/2 or misusing it.

Also, you are in the gray area for cap-exempt vs cap-subject as 6 year clock expired in Jan 2016.

Do you already have a company in mind to file H-1?

Thanks Saurabh,

As per your reply it would indeed be risky to misuse the B1/B2 visa.

By the way what is the meaning of gray area for cap exempt v/s cap subject?

Also can the same employer file for a fresh H 1 petition.


You are cap-exempt for 6 years from last date of holding H-1 status. So in your case you are cap-exempt until Jan 2016 (6 years from Jan 2010). As that date has just passed, your employer can still argue for cap-exempt status but the decision can go either way. That’s what I meant by gray area.

I already have a person willing to hire me but he says I go there on visitor visa and then he files for H1 in due course. Is this possible and if yes do I have to come back for H1 stamping.

See my response to your question on other thread.

Hi Amin, mine is same case. What you did next?

Hi Saurabh, I am not able to see your response in other thread. Can you send me link?