I have a few questions regarding H4 initiation for my spouse please. But here is some background on my spouse’s and my current immigration. My husband works for Oracle on his own H1B visa. He has his I-140 approved with a priority date of November 2017. He does NOT have an H1B visa stamp, and is lawfully staying and working in the US on a valid I-797 from Oracle, which expires in February 2024. I have a valid H1B through Deloitte, but also do NOT have an H1B visa stamp. I also have an approved I-140 and am staying and working in the US on my approved I-797. My husband is planning to leave his job at Oracle in the coming months, and take a sabbatical for a while, and therefore move to an H4 visa (and possibly apply for his H4 EAD in the future, where there are no restrictions on the kind of employment).
Questions:
Since my husband is currently employed with Oracle, can we initiate his H4 petition from Deloitte while he continues to work at Oracle (meaning will he have to quit his job only once the H4 petition is approved)? Or will he have to quit his job on the day we file for the H4 petition itself? (Bear in mind, he will not be allowed to work in the US on just an H4 visa without an EAD, therefore, I would like to know when exactly will the transition happen from H1B to H4 - on the day of filing the petition, or when the petition is actually approved.)
What are current timelines for approval of an H4 petition?
What are current timelines for approval of H4 EAD?
Since my husband is already in the US, is it lawful for him to stay in the US just on the receipt of the H4 petition, or does the petition have to be approved?
Since my husband’s current I-797 expires in Feb 2024, if he moves to an H4 visa, can he transfer to an H1B visa in cap-exempt quota any time till Feb 2024, or even after that since he has an approved i140 or not at all?
If his H4 visa petition is still in progress, is it possible for him to transfer back to H1B if he chooses to (assuming an employer is willing to sponsor him)? Or does the current H4 petition had to be officially revoked from our end before filing for an H1B?
Status will change to H4 the day it is approved so till then he can work on H1B.
You need to check processing time for the USCIS center processing the H4.
Same as above.
If his H1B I-94 expires while his H4 change of status is pending, he will be considered in authorized period of stay and keep living in the US till his H4 is approved.
Yes.
He can apply for change of status to H1B while H4 is pending.
Thank you very much Kalpesh for the detailed response. We really appreciate your inputs. A few follow-ups mentioned below:
Since my husband’s current I-797 expires in Feb 2024, if he moves to an H4 visa, can he transfer to an H1B visa in cap-exempt quota any time till Feb 2024? Or will he be cap-exempt indefinitely since he has an approved I-140?
If allowed to stay in the US on H4 receipt, during the H4 application, is it required for us to select “Adjustment of Status” while living in the US (instead of Consular Processing) to be able to stay in the US on the pending petition while it is still in progress? Or do we also get a petition receipt when we submit a Consular Processing petition on the basis of which we can continue to stay in the US?
If we select Consular Processing for H4 application, until when can my husband continue to live in the US?
Answered as yes. Longer version, with approved I-140 he will be eligible for AC21 extensions beyond 6 years term so cap-exempt.
Change of status has nothing to do with adjustment of status which is last stage of green card.
You can keep living in the US while change of status application is pending OR if you dont want to wait till H4 is approved, you can travel outside the US and go for H4 visa stamping and enter back on H4 status.
As mentioned above you may not apply for change of status and go for H4 visa stamping which is called Consular Processing.