COS from H1B to H4 and then back to H1B

Hello Anil & rest of the team,

Looking for some help. Anil, thank you for all the useful information and for the time you take to respond to posts. I have read through relevant articles authored by you and forum posts and they have been helpful. Some pieces are still unclear. I plan to talk to lawyers too but wanted to ask here given the expertise and kindness shown.

Situation:

  1. Currently employed on H1B visa. I-797 and stamped visa on passport expire May’2020.
  2. My employer is filing for H1-B extension via premium processing.
  3. I am in GC queue (EB-2, PD is Dec’2010) and have an approved I-140 (from 2016)
  4. My spouse is in similar situation as above with their own independent H1-B & GC application. PD is similar too.

What I want to accomplish and how I plan to do it:
Take a break for 3-6 months from work due to personal/health reasons. I plan to do this by going to H4 status after my H1-B extension goes through (new I-797 should be from May 2020 to May 2023). Then in late 2020 I want to be employed again and transition back to H1-B.

Questions - COS from H1B to H4

  1. Is it better for me to get my new H1-B visa stamped before I execute the COS? If yes, what are the advantages?
  2. What are the best practices to follow for filing COS given my situation? I am continuing to research but any links to relevant articles or info is much appreciated.
  3. Anil, in the travel outside usa while ead is pending article (sorry, the forum software won’t allow me to post more than 1 link for first time post) , you mentioned that you recommend going the route of H4 visa stamping instead of waiting for COS to go through - can you please explain why you say that? If I have no plans to travel outside USA once I decide to leave my job then how does a stamped H4 visa help over waiting for COS to go through?
  4. Can I continue to stay in USA without any issues, past the 60 day grace period, once my H1B->H4 COS is filed and is under assessment?

Questions - COS from H4 to H1B when I am ready.

  1. H1-B cap/quota impact - Will I be subject to H1-B lottery/quota/cap system when I plan to join the workforce again? Or will my approved I-797 and stamped H1-B visa (until May 2023) help me get into H1-B status right away?

Questions - GC status

  1. What happens to my approved GC I-140 application when I go from H1-B -> H4?
  2. Will I be able to recapture the PD when I come back from H4->H1B and my new employer is willing to apply for my GC?

Thank you for reading this and the time you take to respond. Much appreciated. :slight_smile: :bowing_man:

Hi @gc404

I must say that your question and articulation is the best that i have seen so far on this forum.

I recommend to get H4 visa stamp simply because it helps you get on to H4 status faster than H4 COS approval. h4 COS normally takes 10+ months and till that time H4 EAD cannot be used or approved.

You can file H4 to H1B COS without H1B visa stamp. H1B COS has the option of premium filing, so you are safe there and can get on to H1B status within 15 days.

The other way i. E. H1B to H4 is not that fast as there is no premium option available for H4.

You can file H1B extension, transfer or change of status with approved i140 as cap exempt anytime until your priority date is not current.

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Thank you @Anil.Gupta for the prompt response & the praise. :slight_smile:

Blockquote
I recommend to get H4 visa stamp simply because it helps you get on to H4 status faster than H4 COS approval. h4 COS normally takes 10+ months and till that time H4 EAD cannot be used or approved.

Thanks. That makes sense. To further clarify, if I don’t plan to travel internationally and don’t plan to work on H4 status (so no need for H4 EAD), is there a true advantage of having official H4 status in faster time? Also, in the 10+ months it may take for h1->h4 COS to go through, can I stay in the country legally?

Blockquote
You can file H4 to H1B COS without H1B visa stamp. H1B COS has the option of premium filing, so you are safe there and can get on to H1B status within 15 days.

Got it. Thank you. So is there any advantage to getting my new h1-B extension (from May '20 to '23) as well as H1-B visa stamped prior to executing the h1b -> h4 COS? Can you please clarify why you think I can get back to H1-B within 15 days? Why won’t I go through the H1-B lottery process? I thought it was because of getting a new H1-B (& I-797) from May’20 to May’23 from my currently employer but your response makes me think that is not the reason.

Blockquote
You can file H1B extension, transfer or change of status with approved i140 as cap exempt anytime until your priority date is not current.

Thanks much for link to I140 article, incredibly informative. Let me see if I got this, is the following correct?

  1. The I-140 approved by my current employer (from May 2016) is key to the whole thing as long as it stays in non-revoked status.

  2. After I leave my job, my employer can withdraw the i140 or they may revoke it. Revoking is bad. In withdrawn status, I can still use the withdrawn i140 to get my GC (if PD becomes correct), correct? And I can do this even if I am in H4 status, correct? Lastly, I can use the withdrawn i140 to also extend my H1-B with my new employer, right? This is incredibly important so I wanted to double check.

  3. Do you know if it is reasonable to ask my currently employer to not withdraw the i-140 after I leave them? Is there law that prevents them from keeping my I-140 in valid status after I have left them? Does it cost them money or other things to keep i140 active?

Thanks again for your help.

Hi @gc404

If you do not plan to travel, then you can file H4 COS and stay in US legally until a result is reached. Normally, there is no issue in H4 approval.

I do not know as to why you want to file H1B extension and get it stamped before filing H1B to H4 COS. I don’t see any value in it.
If you are currently on H1B, then you have already gone through the lottery process. You can get back to H1B if your PERM or i140 is approved. If not, then you would need to go through lottery after 6 years.

Note that to go though lottery again, you will have to spend 365 days outside US physically. You cannot simply file another H1B lottery application while staying all the time in US.

Most employers would withdraw i140 once you leave them due to legal obligations. You can request them to not withdraw too.

Note that even if the employer withdraws your i140, you can still use it if it was withdrawn after 180 of i140 approval.

You other points 1 and 2 are correct understanding.

Thanks @Anil.Gupta for the tips. A few clarifications & questions based on your response:

  1. The reason I am trying to get the I-797 extension & H1-B stamped is so that I can travel internationally after the H1B->H4 COS is filed since I will have a valid H1-B visa stamped. Are you suggesting that I cannot travel outside the USA in the interim period (when H1-B->H4 COS is still going through) on my H1-B visa?

  2. Another Q - I read your article about EB-3 queue moving faster than EB-2. Given my situation, do you recommend that I downgrade to EB-3 right now? If so, do you have articles/guidance on how to go about accomplishing that? Do I need to be employed to make that transition or can I pay lawyers to do that on my behalf? Is there any downside to doing the EB2->EB3 transition?

  3. Regarding I-140 withdrawal - Say that my current employer does withdraw the I-140 due to legal obligation. Is there something they can do or I can do to ensure that USCIS does not revoke the I-140 and simply withdraws it? Have you heard of cases of USCIS withdrawing I-140 given the stringent immigration environment in current administration?

Thanks again for your time with this. :slight_smile: :bowing_man:

Hi @gc404

I have given my recommendations as to when to apply for EB2 to EB3 downgrade here.

You cannot travel while your any change of status application is pending. USCIS automatically abandons the applications if you step out of US.

USCIS will revoke the i140 only for fraud or misrepresentation cases. Your employer can’t do anything about it.

Thank you @Anil.Gupta

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Hey @Anil.Gupta - Hope you and your family are keeping in good health given covid-19 outbreak. Thanks again for all the help you offer here. I am reigniting this thread to request your help given new developments. Let me know if you would prefer a new thread.

Situation

  1. Currently employed on a H1B visa. I-797 and stamped visa on passport expire May’2020.
  2. My employer is filing for a H1-B extension using premium processing. We expect to hear back by the end of March 2020 on my case.
  3. I am in GC queue (EB-2, PD is Dec’2010) and have an approved I-140 (from 2016)
  4. My spouse is in a similar situation as outlined above with their own independent H1-B & GC application. PD is Jan’2011.

Complication

  1. My employer and I are parting ways. My last date of employment is April 10th 2020.

Goal

  1. Find a new job as soon as I can and transition my H1-B as well as GC application to them. If I am unable to find a new job then move to H4 status (based on my spouse’s H1-B status)

Questions

Grace period post last day of employment with current employer (source: 1).

  1. Can you please confirm the grace period is shorter of the following from last day of employment?
    ** 60 days
    ** current I-94 expiration date. I94.cbp.dhs.gov says this - Admit Until Date : 05/14/2020.

  2. I-94 expiration date - Given that my H1-B extension (situation #2) will be here by end of this month, will my i-94 expiration be extended too? I have read that with a new H1-B extension one gets a new I-94 with the same expiration date as the new I-797, true? If this is the case then as outlined in Q #1 above, do I get the full 60 day of grace period?

  3. Does one need to apply for a grace period to USCIS or it is automatically granted?

Post grace period - H1B transfer & H4 COS (source: 1)

  1. When exactly can I start working for a new employer? Can it be done as soon as my new employer has filed a H1-B transfer request, upon receiving a USCIS receipt number of the case or on H1-B transfer approval? The source docs say to wait for approval date, is that the latest?

  2. Can the H1-B extension be filed using premium processing? I think Yes but wanted to double-check.

  3. H1-B to H4 COS - In case I am not able to find a new employer prior to grace period expiring, I plan to file for H1-B to H4 COS.
    6.1 What is the latest I can file for this COS to stay in legal status? Can it be done on the last date of grace period? Or is it that USCIS needs to issue a receipt number for the COS case prior to the grace period expiring? Or something else?

  4. Continue looking for a job post the H1-B -> H4 application.
    7.1 Can I legally job hunt when my COS is under review?
    7.2 If I am able to find a new job and my employer files for my H1-B extension (based on a active or withdrawn I-140 from my ex-employer), will my H1B->H4 COS application need to be adjudicated by USCIS before they do that for my H1-B extension? Given that H1-B->H4 COS is taking upwards of 10 months, can a case be made to USCIS to adjudicate the H1-B extension right away and ignore the H1B->H4 COS case?

New employer -GC process (source, 1, 2)

  1. Since there is no such thing called a PERM or I-140 port, my new employer will have to file a new PERM and new I-140 correct?
  2. Date of filing becomes current & PERM isn’t approved: Can one file for I-485 if the date of filing is current and the PERM & I-140 are not approved for the new employer? If yes, can one get EAD + AP as part of this change?
  3. Priority date (PD) recapture - Is there any issue with recapturing my PD no matter how long the PERM takes and regardless of where the date of filing or action is at relative to my PD?

As clearly mentioned in the H1B 60 day grace period article, you get either 60 days or i94 expiry days, whichever is lower.

Each new H1B extension comes with a new i94.

There are no documents or application required to file grace period - this has also been clearly mentioned on the article.

Everything has been discussed before:

@Anil.Gupta- Thanks much for the response. My apologies for not thoroughly checking the forums.