I am currently on f1 visa and my employer will file for H1B. My H4 is already in progress, to avoid gap in employment / to avoid leaving US, in case H1B does not get picked in the lottery. My question is - what if h1 gets picked up? In that case, starting from Oct 1/approved date from USCIS, H1 will come into effect, F1 status will be over, but what about H4 pending case? I believe eventually I will get H4 EAD, if approved.
So what happens to H1B, which is already utilized for say, 6-7 months but now I decide to move to H4 EAD?
Assuming you are talking about H1B for 2022 lottery and if approved will be effective 2022, if you still have F1 to H4 pending after 1st October 2022, you will need to withdraw F1 to H4 otherwise if approved you will transition to H4 status based on last action rule.
Please mention what timelines you are looking at, when do you think your H1B will be effective from?
for example, H1B is filed for FY22. Assuming, it gets picked up and all paper work submitted, status will automatically change from F1 to H1 from October 1 2022. but then there is already another application in parallel - F1 to H4. It is not withdrawn and in Jan 2022, now status is approved for H4. question was - given that now the person is already on H1, starting from oct 2022, Can that H4 be disapproved? If No, then starting from jan 2023, status is now H4 approved. What will happen to H1B, if you move to this H4 in jan 2023? in other words, what happens to your H1B if there is COS from H1B to H4 or any other visa category? do you have to go through the lottery process again in case you decide to move back to h1B in future? Will H1B be just nullified or does that remain dormant for the remining unutilized period?
Not unless your employer also applies for change of status. You have option not to apply for change of status with the H1B petition so that if your H1B is approved, you can go outside of the US and get H1B visa stamped (consular processing) and then enter back on H1B status. This way you control when you want to switch to H1B.
If your status change from F1 to H4 in Jan 2022, you will be in H4 status already when your employer will apply for H1B and if they also file for change of status (instead of consular processing), it will be from H4 to H1B.
If you change status from H1B to any other non-immigrant status, and want to switch back to H1B, you are counted as cap-exempt (no need to lottery again) until you complete the 6 year H1B term. Also if your employer files green card for you and you have I-140 approved before the H1B max out (6 years), you can be eligible for H1B extension beyond 6 years under AC21.
thanks! So when you say - “counted as cap-exempt (no need to lettery again) until you complete the 6 year H1B term”, this is valid only if the employer does not not revoke H1B. Right?
say for example, my H1 gets picked in FY22, I start on H1B from Oct 2022. I keep working with this employer A until Jan 2023 (which is like 4 months on H1B). But now when i move to H4 and take a break from employment or may be join soem other employer B on H4 only (of course with EAD), then this remaining period of H1B ( 6 years - 4 months) are counted as cap-exempt, ONLY if employer A(who initially did H1B) does not revoke. If it revokes, then its like back to square 1, or going back to lottery in future for H1B. Right?
No valid even if H1B is withdrawn. It is 6 years from the date of 1st approval of H1B.
Yes, revoke or no revoke.
So in short, if you get H1B once picked up in lottery, there is no need of going back to lottery anymore. if you dont use your H1B for any case (change of status to any other visa or quitting job), that remaining period of unused h1B stays, until you decide to use it over again in future (you will need h1B tranfer). is my understanding correct?
Yes. Note that you don’t need lottery (cap-subject) for the 6 years of the H1B term once approved in lottery. During this time you may transfer as cap-exempt as many times as you want. If you get your I-140 approved before the 6 year max-out, you are eligible for cap-exempt AC21 extensions beyond 6 years.
Thanks much for the clarification!