H1b to H4 EAD without lapse of employment using future date

USA
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1

Hi all,

Im currently working in US (in a fully remote position, ok to work out of US for a few months as needed) on H1B set to 6 year max out on Jan 20 2024. My i140 is in Perm stage right now, applied in July 23, and hoping for i140 to be approved by July/Aug 2024. I got married earlier this year and my spouse has approved i140. Is there a way i can switch to H4 EAD without any lapse in employment by spending minimal time in India.

Plan is to:

  • Apply now for H4 Change of Status(COS) and H4 EAD with a start date of March 15th 2024.
  • By Jan 2nd week 2024, Travel to India to avoid H1B from maxing out and continue working from India till March 15th 2024.
  • Come back to US after March 15th 2024 from India and switch to working on H4 EAD
  • Switch back to H1b in Aug 2024 once i140 is approved

Is this a viable plan ?

Thank you for your help!

Alternatively, is there a better way to execute this without going to India at all ? Trying to minimize my time out of the country as I recently got married. However staying employed, is higher priority.

  • Travel to India now and get h4 visa stamped
  • Take job leave for 2 weeks and travel back to US on H4 and apply for H4 EAD (hoping i will get it by Jan 20 2024 or soon after).
  • Leave US (to Canada or Mexico) and re-enter back on H1b and continue working.
  • If I don’t get approved H4 EAD by Jan 2nd week 2024, leave country by Jan 15 2024. And re-enter back on H4 after i get approved H4 EAD.

Don’t know if this plan is better or worse.

Thanks again for all your help!

2

There is practically no way to avoid a gap in employment when you want to switch from H1B to H4 (and EAD).

The fastest way i can think of is to go out of US, get H4 visa stamp, enter US on H4, file H4 EAD and then go out of US and keep working.

Once they approve H4 EAD, return to the US on H4 visa and use H4 EAD to work.

The other possible option to file h1B extension in premium and also apply H4 COS and H4 EAD with it. They may approve all 3 at the same time. This way, the unemployment time will be minimal.

3

Thanks for the reply Anil.

Have a question here, Don’t I have to re-enter US on h1 again to keep working on h1 and then go out of US to avoid max out ?

Can you please elaborate on this as to why future dating h4 and h4 ead to March 15th 2024 wont work please, thinking i can work on h1 till then (out of country)

will this save me the H4 COS processing time, is that accurate? Is it worth going through the pain than applying H4 COS and H4 EAD together ?

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You can certainly request a future date on H4 COS but it is not guaranteed to be approved by USCIS.

They may or may not approve it with the requested start date. So, you will always be in a dilemma.

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Hi @defy_123 If your partner’s H1-B renewal is coming up, then I would say apply your H4 and H4-EAD along with your partner’s H1-B renewal petition. Higher chance that all three petition will be approved at the same time. I did this in Feb 2023 and my H4 and EAD and my husband’s H1b were all approved at once.
P.S I was in H1-B as well and had to switch due to PERM process.

1 Like
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Hi Saranya,
Were you able to request effective start date of something before your husband’s h1b extension start date?

For example, my husband’s current h1b expires in august. his firm is doing my h4 and h4ead with his application in premium

Will we be able to get effective start date of sometime around may 2024 or does it have to be august 2024 for my h4 ead?

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What is your current status? Is it H4 or something else? Do you currently have H4 EAD or is it first time EAD?

Usually, they will match everything with H4 dates. H4 dates are matched with H1B.

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My current status is h1b, maxing out in September. My husband’s h1b extension starts from August 10, which lawyer is currently preparing. I was told by company that I will be laid off on May 24, which would result in dissolution of my pending Perm. We are bundling h1, h4 and h4 ead with premium processing. We have asked lawyers and waiting to hear answers. But the ead I will get will start from August 10. So what can I do to bridge the gap between May 2024 and August 2024. Apply 2 h4s?

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Hi @anil_am22
Following up on your comment that
“Usually, they will match everything with H4 dates. H4 dates are matched with H1B.”

For concurrent H1B extention+H4+EAD, does it work if we put the new H1B start date to be earlier than the previous H1B expire date, with the intention that H4 EAD will have an earlier start date?

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No, it doesn’t work like that.

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Thanks for the quick response.
It doesn’t work like that as in even if you put in H1B extension start date to be earlier, USCIS will ignore it and treat it as if you are seeking extension right after the previous H1B expires?

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Hi @anil_am22 , for what it is worth, my lawyer recommended and will file the LCA and I-129 with the current date so that it is aligned with I-539 and I-765 dates.
I will report back whether this works.