Hi,
My wife’s 6 year H1 expired on Feb 12 2022. During her 6 year stay in US she travelled out of country for 1 month and a few years ago we applied H4-COS (Revoked while pending as she got a new job) for 5 months while in between jobs. So we requested 6 month extension but USCIS replied with an RFE saying they would approve for 1 month but the other 5 months can’t be considered as unused time.
We also filed H4 + EAD (to be on the safe side) before Feb 12 2022 but due payment issues, we had to resend the package (with NPT option) but the Receipt date as per USCIS is Mar 9 2022.
As of April 29 2022, her I-140 is approved but we are unsure how to file the new H1B application. Should we file it based on H4-COS or the pending RFE H1. We are hoping to avoid having to travel out of country (I-94) as we have a newborn baby.
H1B sponsoring employer can file new petition based on approved I-140 with change of status from H4 to H1B even while your COS from H1B to H4 is pending.
If you file the H1B in premium processing, chances are USCIS will be forced to adjucate the H1B to H4 COS first and then the new H1B with COS from H4 to H1B.
Discuss your options with employer’s immigration lawyer.
Thank you. We were told by the immigration lawyer that H4 to H1b COS won’t be an option since here I-94 expired on Feb 12 and here H4 receipt date is Mar 9.
Other option was to send an RFE response to H1 extension based on recapture and then try H1 (Feb 12 to Mar 9) → H4 (Mar 9 - May X) → H1 (from May X) but she said the chances of approval are less. Instead she prefers H1b Consular processing and wants us to leave the country as soon as thats approved to get Stamped.