H4 to H1B cap exempt status change

Hi Anil,

Hope you are doing great! I have a tricky situation,

1- My H1B visa was maxing out on March 21 so I decided to leave on March 19 from US.
2- My PERM was applied in Nov 2018 and was approved but i140 was still not approved so I had to leave.
3- I also had a pending i797 extension when I left, it is still not approved. Though it is already expired on March 21 but still unapproved.

My i140 is now approved, and I am planning to come back on H1/H4 so can you please help me with below?


  • if I come back on H4 then can a new employer file a new H1B petition for me?
  • If yes then can I start working once it gets approved?
  • With premium filing how long it might take for a new petition + COS to get approved?
  • Should my unapproved H1 petition cause any issue for H1 processing?


  • Since PERM was filed while I was still in US so H1B is cap exempt as per my employer so is that true for only current employer or all?
  • My current employer file a new H1B cap exempt petition for me? If yes then
  • With premium filing how long it might take for a new petition to get approved?
  • Should my unapproved H1 petition cause any issue for H1 processing?


H4 to H1B change of status with approved i140

You can enter US on H4 and then file H4 to H1B change of status application in premium to get result within 15 days.
You would need your approved i140 to file this H1B change of status application.

You can start working using H1B once it is approved and not on h1B receipt as you are moving from H4 to H1B.

There is no issue with pending un-approved h1B extension.

H1B transfer

You will not be able to file H1B transfer without an approved i140.

Your PERM is only valid for your current employer. i140 can be ported to new employer but with some conditions.

Thank you so much Anil.

I have 140 approved now but I only left 2 days on my 6 year period on H1B when I left so I hope that should not cause any issue as i140 is now approved. Can you please confirm?

On a different note, since my 140 got approved only recently so do I need to wait for 180 days before using it with a new employer or it can be done instantly? I am worried that my current employer might revoke if I attempt to change my job on H4.

I do not understand what issue you are talking about in your first question.

Your employer can withdraw i140 if you leave them before 180 days of i140 approval.

So within this 180 day period, if I use i140 for H1 transfer to a new employer and then after successful H1 transfer if current employer revokes it then I hope that should not impact my H1 transfer, is it safe to assume?

I do not suggest to leave i140 employer before 180 days.

USCIS can issue a NOID to revoke your approved H1B if i140 is withdrawn by your employer. So, be careful.

Thank you Anil for kind and so meaningful solution, this helps!

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Hi Anil,

There is some development I am expecting from my employer and they want to initiate my H1b after i140 approval. I am trying to get it done in premium for faster adjudication, but I also have an appointment scheduled for H4 visa stamping in June, so

  • will there be any implication on ongoing H1b visa process if I proceed with H4 visa stamping?

  • if above option looks safer then considering my H4 gets stamped and I decide to travel while my H1b gets approved or is in process, then is there any implication on H1b?

H1B application can be approved without any affect from your H4 visa stamping.

But, you would need to get H1B visa stamp to enter USA on H1B.

Thanks, what if I travel on H4 because that will definitely change my status to H4 and possibly I will have to come back to India for visa stamping? Correct?

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Yes, that’s correct.

Hi Anil,

My H1B max out is on 08/26/2022 which includes recapture days and my perm is filed on 03/14/2022
So my attorney suggesting to change status to H4
Below are my options

  • change status to H4 , what happens if h4 is not approved before my max out ? I still need to leave the country ?
  • what happens if I get i140 approval after my H1B max out ? Can I withdraw my H4 request and apply for H1B based on my I140 approval ?
  • if my PERM/i140 is approved after my H1B max out then do I need to go through lottery or 1 year break or I don’t need to go through that and can just apply for H1B extension ?

Please suggest

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@Anil_Gupta please suggest on my queries above.
Appreciate your suggestions on this !

No you dont until there is a decision made by USCIS on the change of status application. The period between the H1B I-94 expiry till the COS application is adjudicated is called ‘period of authorized stay’.

No, you dont need to withdraw H4. Rather file H1B in premium with change of status and this may force USCIS to first approve the COS to H4 and then the H1B with COS from H4 to H1B.

Once your I-140 is approved, you qualify for cap-exempt H1B extension beyond the 6 year term under AC21.

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Thanks @Kalpesh_Dalwadi !
I have 2 options to consider

  1. Leave country just few days before max out. Once H1B approved, get it stamped and back to US
  2. Apply for dl change of status to H4. Once H1B is approved start working. So don’t need to wait for stamping and no need to leave country

Which option do you suggest in my case ?

You will need to choose one based on your priorities. If your spouse is on H1B and you have kids, leaving the country and going through the hassle of visa stamping may not be preferable for you.

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Yes. I was just scared to apply for H4 because I wasn’t sure that I can continue stay even after H1B max out if H4 is applied not approved yet. Also can apply for change of status to H1B back once i140 is approved even after max out .

So H4 seems to be better option .

Thanks for your response @Kalpesh_Dalwadi appreciate it !

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Hi @Sheela I am in same situation. Did you applied for H4? What is your attorney suggestion?