Change Of Status - H4 to H1B : Lottery or No Lottery?

USA H1B Visa
1

Hi,

Me and my wife both are in US right now. I am on H1B (valid till Dec,2017 and can be extended till Dec,2020) and she is on H4. I want to file COS for my wife (H4 to H1B) next year (April 2017). She got an employer who is willing to file COS for her. But my concerns are as follows :

  1. As she is filing her H1B for the first time, will COS undergo through lottery(65k Cap) or there is no cap for COS?
  2. If she want to visit India Feb,2017 for 4/5 Months will that impact her chances to get her H1B?

Any response would be much appreciated.

Thanks
Praveen

2

  1. There is no separate category for COS. So everyone has to go through the cap irrespective of whether it is COS or consular processing.

  2. If she is not inside US in April when her H-1 application is filed, then COS cannot be applied. It would be consular processing. COS can be applied only when the applicant is inside US on the date of filing, and is approved only when the applicant continues to stay inside US through the entire processing.

3

Thanks Saurabh!

I have one more doubt

  1. If her employer chooses to file her H1B via consular processing and her application has been picked up via lottery, can she file COS after coming back to USA (Month of August) on H4? How long does that process generally take for her to start working here in USA? Or she can start working immediately after filing her COS?
4

She can apply for US after she returns to US and her H-1 has been approved. She cannot file COS while H-1 is still pending.