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I did H1b (company non cap,) to (H1b Cap exempt); Can I switch back to Non cap H1b, I got an offer from Non cap, profitable ?

Laurel, MD |

Converting visa to non cap from cap exempt is a transfer or need a new visa , do I need to wait till next April for new visa, my non cap visa was approved this October 2013; I changed that to cap exempt visa. Can I switch back to non cap? Need a response, thanks in advance. (non cap h1b to cap exempt h1b, again to non cap??? Need advice, is there any issue? Do I need to wait till next April to do a new visa?

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Attorney answers 3


If you've been counted against the cap in the previous six years, you are not again subject to the cap for now. You can go cap subject to cap exempt to cap subject -- assuming of course that you qualify otherwise and the filing is properly prepared.

Attorney Khurgel is a former USCIS and State Department Embassy Officer. His comments on Avvo are general advice, and do not constitute an attorney-client relationship.



Thanks for the reply, so good to know about this. I don't need to file h1b again and wait till October .. that's a relief.


As long as you counted against the cap with the first petition, you can switch back to another cap subject petition at any time as you have already been counted in the last 6 years. Assuming time in h1b status does not pose a problem and, of course, the petition is approved.


As my colleagues have pointed out, if you've been counted against the cap in the previous six years, you will not be counted against the cap again. Your sponsor will need to file a transfer (a new H1B petition) and you will need to qualify for employment with the new employer. You can start working for the new employer once USCIS receives the I-129 transfer petition.

The information provided is intended for informational purposes only and should not substitute for the advice and counsel of an attorney. This information does not constitute legal advice. We ask that you consult with a lawyer, as your facts are unique and because each situation requires analysis from many different perspectives. We cannot be responsible if you rely on information based on this website without the consultation of an attorney.

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