File H1B transfer after lottery without activating the cap-subject H1B?

My wife is working on H4 EAD with employer A and she now have H1B approved with lottery from employer C. Her employer B did not file her H1B with change of status. I know that in this case, to activate H1B she has to go to India for stamping and come back on H1B.

But let’s say, if she does not go to India for H1B stamping of employer B, and is still working on H4 EAD with Employer A, can she transfer or file a new H1b under cap exempt with employer C?

Wont the new employer need paystubs and all the information from Employer B? How does this work?

Legally, it is allowed to file H1B transfer after getting the approval from lottery.

But, these days, we have seen that USCIS issues RFE to prove the H1B status which you are referring to as showing the last 3 pay-stubs.

USCIS is enforcing that you should be in your H1B status for at-least 1 days before filing for H1B transfer.

Hi Anil,

I am on H4 EAD and working as full time employee to a company. I have filed new H1b last year (2019 May) through a different company. my question is once H1b is approved, can i ask my current employer to initiate transfer without joining the company that filed H1b?

Is there any rule like, i need to work with the company that filed h1b upto certain period prior to transfer?

Do i need to go for stamping in any of this case?

Hi @MadhaviP

Your question has been answered above earlier. Please read.

Thanks for the response. I am a full time employee to a company working on H4 EAD. If my H1b is approved, i need to serve notice period with current employer to get relieved. But as per status, i will be on H1b during that time. What are the complications if my current employer do h1b transfer during this notice period?

Hi @MadhaviP

You can only work in US as per your H1B once it is approved. You cannot work using H4 EAD. Forget about notice period unless you want to violate your legal status in US.

My situation: i am working at company A on H4EAD and have consular processing H1b approved in 2019 nov for engineer position. I am close to having an offer from company B for TPM role. Can I apply for H1b transfer to company B or will I lose H1b spot from company A as it is not activated yet after it was approved in lottery. Do I have to go through lottery again for H1b ?

Appreciate any inputs to this situation. Thank you.


Please read above.

Thank you anil for your inputs. Follow up question .
Can I apply for change of status within company A ? If yes, once it’s approved and stay for atleast 1 day then initiate the transfer. It will be safe from RFE stand point ?

Really appreciate your forum for clarifying question which enables to have effective communication with lawyers. Kudos !


I have H4 EAD valid till Dec 2021. Employer A has filled my H1B this year, it got picked in the lottery and now I have I797 approved with start date Oct 1st, 2020. Meanwhile due to COVID -19 I lost my job with Employer A and got full time position with Employer B, joined Employer B on H4 EAD and currently working. Below are my queries:

  1. What’s the safest way to protect my approved H1B and Job with Employer B (as its full time I don’t want to change).

  2. If my current Employer i.e. Employer B files a transfer on October 1st, 2020 then what’s the probability of approval (first time H1b)

  3. In case my COS (H1B transfer to Employer B) gets denied then will my H4 EAD be valid? Will I be able to use it for the future employment with Employer B?

  4. As my I797 with Employer A is approved for 3 years, so in case of the denial with Employer B, In future any other employer will be able to file it again within 3 years from now?

Looking forward for your reply.

Thank you

Hi Anil,

I am in India and got my first approved H1B petition (I-797) with validity from Aug 2019 to Aug 2021 but I don’t have stamped H1B Visa because I could not go for stamping due to family issues and covid situation. What options do I have now considering the US Consulates are open for emergency appointments only and the petition will be expiring in next 3 months:

  1. Can I go for H1B extension without having the stamped H1B Visa before the current petition expires while in India?
  2. Let’s say if I go for H1B stamping and gets the stamped Visa but could not travel to USA because of travel ban. Can I get the H1B extension initiated before my current petition expires while in India?
  3. Let’s say if I go for H1B stamping but gets denial. Can I go for new H1B petition in cap exempt and start the process from there?
  4. Let’s say I could not get the stamping done because of emergency appointments only and the petition expires. Can I go for new H1B petition in cap exempt and start the process from there?

Sorry for asking so many questions, your response and help is much appreciated on this.