Am i in legal status in USA if H4 extension Pending and Cap Exempt H1 approved without new i94?


I need help on below.

I filed H4 Extention and H4 EAD Extention on 12 july 2019, currently in pending status. (H4 - i94 expired on SEP 16 2019)

I filed H1B cap exempt application through my employer in Aug 2019 in premium. Got RFE. Responded to RFE. Got Approval. Received the I797B, with out I94.


  1. Am i in legal status at the moment in USA?

  2. Is my H4 and H4 EAD application still valid and will the decision on my H4 by USCIS gets impacted due to my approved H1B (I797B)

  3. I have been told by my employer (who filed my H1B ) that i need to get back to India, for visa stamping using the H1B I797B.

  4. I do not know the reason why I94 is not present on my I797, i did not get right response from my employer if they have filed COS along with the CAP exempt H1 Filing. However when i looked at the Petition Application send by my employer i do not see the I539 in the documents.

  5. I can not go back to India at the moment for h1 visa stamping because of my new born baby. Can i now file any COS for the approved H1 Petition? If so how can i proceed?

  6. Can i ignore this H1 and wait for my H4 and H4 EAD decision to work (i assume my H1 (I797B) will not impact my H4 and H4 EAD approvals by USCIS)?


Hi @Veerarajani

Are you on H4 visa currently?
Assuming you are on H4 and filed H1B COS application, you are ok to stay in US as you filed H4 extension before your i94 expiry.

You have to first make sure if your employer filed H1B COS application of H1B with consular processing. Once you know, then we can suggest if it is okay to file a new H1B COS or not.

You can keep waiting for H4 and H4 EAD with no issue.

Thanks for the reply!

Yes i am on H4, I filed H4 Extention and H4 EAD Extention on 12 july 2019,
Current H4 expired on Sep 19.

Looks like my employer filed my cap exempt h1 with consular processing (In the form I-129, Part 2=>4. Required action=> option a is selected. And in Part 4=> 1(a) consulate option is selected)

Can a H1b cap exempt application be filed with COS ?

With current status as H4, Can a H1B CAP Exempt application be filed with COS while staying in US?

Hi @Veerarajani

H1B COS application is for changing your status from H4 to H1B while staying in US. You can file H1B COS.