H4-to-H1 and back to H1, Cap exempt. Last action rule?

USA H4 Visa
1

Hi All

My wife got her H1B picked in 2019 but got an RFE and a subsequent denial, we filed an Appeal which was approved on Dec 18th 2020 , from 2019 until now she has been on H4 and working for the same employer who had filed her H1 and applied for H4/EAD renewal. My questions are :

  1. Now since her H1B has been approved, what if H4 gets approved before it is cancelled will it over-ride the H1B status?
  2. If she goes on H4 and later finds an new employer to file her H1 will she fall under Cap-exempt or will she have to go through the lottery process again if her employer revokes her H1B.
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  1. USCIS works on the last action rule. Meaning, whatever comes last will be the status. If you do not want the other one, then you should withdraw it or exit and re-enter the country as needed. Talk to your attorney.
  2. yes, if she has H1B status now and got I-94 with COS(change of status). If you hav applied it as COS, you already have H1B status. So, you should be good to be considered as cap exempted in future. No need of lottery.