H1B to TD to H1B

[RA Joshi]

I am on H1B. My I797 date is valid until 16th Feb 2016. However I am laid off and my last date of work is 5th November 2015. I am planning to change status to TD (dependent of TN) and go to India on vacation after 5th Nov. My question is, am I eligible to be H1B cap exempt when I change status back to H1B from TD after coming back to US in December 2015 i.e. will it be just a change of status to H1B or a new H1B filing.

[shervin143]

Your H1B CAP will remain valid and any employer can file a new petition using that CAP and request an immediate start date. You are suppose to leave the country when a COS is pending. If you are anyhow planning to leave the country, then leave immediately after your last working day so there is no need to file a change of status before you leave.