Returning to H-1B from H-4: Cap-Exempt Paths and Filing Tips

Switching from H-4 back to H-1B sounds stressful for many families, especially with new fees and changing rules. The good news is that in most cases you can return to H-1B status, often as a cap-exempt case, and you usually don’t face the new $100,000 H-1B fee if you apply from inside the United States 🇺🇸.

Below is a clear step‑by‑step view of the full journey: how the process works, who is cap-exempt, what the employer must do, how long each stage may take, and what you can expect from U.S. immigration authorities.

Step 1: Check If Returning To H-1B Makes Sense For You

Start by confirming three basic points:

• You held H-1B status in the past or were counted under the H-1B cap before.
• You now hold H-4 status as a spouse or child of an H-1B worker.
• You have (or can get) a specialty occupation job offer from a U.S. employer.

A “specialty occupation” is a job that normally needs at least a bachelor’s degree in a specific field, such as software developer, architect, engineer, accountant, or similar roles.

If these items fit your situation, there is a strong chance your new petition can be filed as cap-exempt, meaning it does not go through the annual H-1B lottery.

Step 2: Confirm Cap-Exempt Eligibility

Key numbers to know:

• The regular H-1B cap is 65,000 visas each year.
• There are 20,000 extra H-1B spots for people with a U.S. master’s degree or higher.

However, many cases are not counted again under this cap. According to analysis by VisaVerge.com, the following are usually cap-exempt:

• People already counted under the cap in a past year who are now seeking:
  • Extensions with the same employer
  • Changes of employer
  • Changes of status (for example, H-4 back to H-1B) from inside the United States
• People with an approved I-140 immigrant petition who are extending H-1B beyond six years.

If you previously had H-1B status and now hold H-4, and your new employer files while you are still in the United States, your case is normally cap-exempt. This is important because you:

• Don’t wait for the April lottery window
• Can file at almost any time of year
• Move forward as soon as your employer is ready

Key takeaway: Being cap-exempt means faster, more flexible filing — a major advantage for H-4 holders returning to H-1B.

Step 3: Understand The $100,000 H-1B Fee Rule

A September 2025 presidential proclamation introduced a $100,000 fee for certain H-1B petitions. Based on current guidance:

• The fee applies mainly to new H-1B petitions filed on or after September 21, 2025.
• It targets beneficiaries outside the United States who do not already hold a valid H-1B visa.

If you are in H-4 status inside the United States and your employer files for an H-1B change of status, your case is not subject to this $100,000 fee under the described rule.

Your employer still pays the normal H-1B filing fees, but this very high extra fee should not apply to your H-4 → H-1B change of status case.

Warning: Rules and guidance can change. Confirm current fee guidance with counsel before filing.

Step 4: Employer Preparation – Job Offer And Filing Strategy

Your employer must complete several tasks before filing:

1. Offer you a full‑time or qualifying part‑time specialty occupation position.
2. Agree to act as your H-1B sponsor.
3. Decide on the start date and whether to request premium processing.

The employer’s immigration attorney will:

• Confirm the petition’s cap-exempt status.
• Plan the filing date, especially if your H-4 status is near expiry.
• Prepare the required supporting documentation.

Step 5: Filing The H-1B Petition With USCIS

To change status from H-4 to H-1B inside the U.S., your employer files:

• Form I-129, Petition for a Nonimmigrant Worker, with a request for change of status from H-4 to H-1B.

You can review the official form and instructions on the USCIS website: Form I-129, Petition for a Nonimmigrant Worker.

Along with Form I-129, the employer submits:

• Evidence that the job is a specialty occupation
• Proof of your degree and related field
• Copies of your current H-4 documents
• Filing fee checks, including any premium processing fee if chosen

USCIS explains the H-1B category and cap-exempt rules in more detail here: H-1B Specialty Occupations.

Step 6: Expected Processing Times And Possible Premium Processing

Processing time depends on:

• The USCIS service center handling the case.
• Whether the employer uses premium processing.

Typical timelines:

• Regular processing: often several months (varies by center and season).
• Premium processing: USCIS aims to take action within 15 calendar days for an extra fee.

During adjudication:

• You remain in H-4 status.
• You cannot work in H-1B status yet (unless you already have an H-4 EAD and are working under that).

USCIS may issue a Request for Evidence (RFE) if they need more documentation about the job, your degree, or the employer. If an RFE arrives, the employer and lawyer must respond by the deadline in the notice.

Step 7: Approval, Start Date, And New I-94

If USCIS approves the petition with a change of status:

• You receive an I-797 approval notice showing H-1B classification.
• The bottom part of the approval should include a new I-94 reflecting your H-1B status.
• Your status changes automatically to H-1B on the start date listed in the approval.

At that point:

• You may begin working in H-1B status for that employer from the listed start date.
• Your old H-4 status ends, because you now hold H-1B status instead.

Keep copies of these records for future use:

• Old H-4 approval or I‑94
• New H-1B approval and I‑94
• Passports used during the process

These documents help with future extensions, green card filings, or travel and entry questions.

Step 8: Travel Outside The United States After Approval

If you remain inside the U.S., you can work in H-1B status using only your approval notice and I‑94.

If you travel abroad and plan to re‑enter in H-1B status, you must:

• Book a visa stamping appointment at a U.S. consulate.
• Apply for an H-1B visa using your approval notice and supporting documents.

At consular processing the officer will review your case and, if approved, place an H-1B visa in your passport. When returning to the U.S., present:

• Your H-1B visa in the passport
• Your I-797 approval notice

Your new I‑94 at entry should again indicate H-1B status.

Step 9: Long‑Term Planning – Extensions And I-140 Cases

After returning to H-1B status, the normal H-1B rules apply:

• Standard six‑year limit in H-1B status (commonly granted in three‑year increments).
• You may keep extending if you have:
  • A pending PERM or I‑140 long enough to qualify for extensions, or
  • An approved I‑140 and your priority date is not current

In these scenarios, future H-1B extensions are also cap-exempt, since you are already in H-1B status and are not being re-counted under the cap.

Careful coordination with your employer and immigration lawyer will help avoid gaps in status — especially if your spouse’s H-1B situation or your green card timeline changes.

Final note: Rules and interpretations can change. Always confirm your specific case strategy with an experienced immigration attorney before filing.