Entered on B1, want to apply H1.. can i stay while waiting?


I entered US on B1 a couple of months ago. I got almost 4 months entry and i have another 2 months to go before my 1-94 expires. I had an H1 from my employer but i never used that. i never travelled on my H1 in last 3 years. My employer wants to re-apply for my H1 again while i am in US.

  • Will this be cap-exempted?

  • Can i stay in US while my petitions is being reviewed or under processing with USCIS? i.e. my I-94 is expiring in End of march, so can i stay till June if my H1 application is still in processing.?

  • I had a valid H1 when i entered US on B1. I actually came just for training so i thought not to use my H1? will it be counted or it will prove to be a downside that i didnt use my H1.

Please advise.


  1. Generally, an individual is eligible for six years of time in H1B status and will only be counted against the numerical quota once during the six years. So if your h1b was filled within the last 6 years then you are cap exempt

    1. I think as soon as your I94 expires you would need to leave even if your H1 is in progress. I am not sure about any other way on B1 to continue

    2. In L1b the time spent is counted towards H1 not sure about B1

  1. If you have a pending COS (from B-1 to H-1), then you can continue to stay up to 240 days after I-94 expiration date. However, it gets denied, then you will have to leave US ASAP. I suggest filing it w/ PP, so that you know the result timely and have ample time to make further plans.

  2. It is ok not to use previous H-1 as you were coming for a purpose more suitable for B-1 than H-1. However, when adjudicating the COS, USCIS will review what your intent was when you entered US. If they determine that your intent was to enter US on B-1 and file COS to H-1, then they might deny the COS.

If you have an attorney, I suggest getting your case reviewed by them (especially the chances of COS success).