COS to H4 - Advisable and what are the best next steps?


Hi there!

My PERM was filed in Jan 2020 and I’m still waiting on a response for the approval confirmation from DOL. Max out date on my H1B is end of August 2020 and I want to know what are the legal options? My company is prepared to file my i140 + H1B extension on Premium once the PERM approval comes through

  1. My wife is on H1B and her office is willing to file H4 for me so that I can continue staying in the US.
  • If I’m to apply for a COS to H4, is it possible to resume work on my H1B when it gets approved?
  • Is it possible to withdraw my H4 COS application as soon as my H1B gets approved?
  • What will be the best time to apply for H4 COS as I know applying for that would mean I stop working on my current H1B. Also, I’m aware that I cannot burn out my current H1B completely and need some reserve days on it. So how many days in advance should I apply for COS?
  • I heard from one of my friends that once H4 COS is applied, I cannot start work on my H1B after it comes through until a decision is made on my H4 COS which might take months.
  • In this case, is B2 a safer and better option?

Please let me know

It does not matter what visa change of status you file. Both B2 and H4 have same rules.

You can withdraw the pending COS application once H1B has been approved and then start working.

The chances are high that USCIS may send an RFE to wait for the COS application result before approving H1B.


Here is my situation, I’m on H1-B and my max-out date is 12/05/20. My current H-1 ends on 09/30, and my I-94 expires in the first week of October. My employer applied for a time recapture extension for extending it till December. My PERM application was selected for audit and it was not applied before 365 days of my H-1 max out date. My spouse is on H1B with an approved I-140.

I’m thinking of COS to H4. But here are my questions:

  1. When is the best time to apply for COS right away or wait till my current H1 recapture is approved or wait until December?
  2. Is there a difference between a COS on my H1 which ends in September and COS on my I797 receipt notice for the time recapture?
  3. What will be the status of my H1 and H4 applications if I apply them together? What happens if my H4 gets approved after my H1 or vice-vers, will I still be able to work till December on my H1?
    Once my PERM gets approved:
  4. Do I qualify for cap-exempt to do a COS back to H-1 after I have my I-140?
  5. If my H4 COS is still pending, can I revoke H4 and continue with H1 extension?