Can I file COS H4 to H1B within 30 days of entering to USA?

Hi Saurabh,

Could you please guide me on the below situation? Your help is greately appreciated.

I was in US in F1 visa and applied H1B. H1B approved without change of status, so had to go to home country for visa stamping. While h1b stamping decision is pending for more than a month at US consulate, my wife got sick in US as she is pregnant and had to withdraw H1b application from US consulate and applied H4 on wife’s H1b and came to US. As my H1b was approved already and I am on cap exempt, if any other employer is ready to file H1b now, then can I file my change of status from H4 to H1b within 30 days of entering to US? Or I have to wait till 60 days as it is going to be visa fraud 30/60/90-day Rule?

And also, is it ok to file the H1b again from the same employer who had filed H1b earlier? If it is ok then, What are the chances of H1B approval without I-94 again?

Please advise!

30/60/90 is a guideline and not a rule.

It is more applicable in cases when one enters on pure non-immigrant visas like B-1 and F-1 and less applicable to other dual-intent visas like H-4 and L-1. Having said that, it is still recommended to stick to that guideline.

I don’t know when you entered US, but finding employers and doing the pre-paper work takes time. So may be you can search for the employer, have them file LCA and get other paper work done. By the time they are ready to submit I-129 w/ USCIS, you may be over that 30 day period.

When you zero down on an employer, their attorney can look at your specific case and provide more useful information.