H1B to H4 then back to H1B but this time including spouse for H4/EAD

Hi @anil_am22, I have went through several of your posts and others as well and I have some ideas but wanted to get your opinions on my case as described below:

  1. My H1B is maxing out (and has the expiry date) on 05/28/2021.

  2. Due to the current travel restrictions and since my Perm (PD: 10/08/20) was about to get approved, my employer decided to file for a COS to H4 against my wife’s independent H1B (which is currently valid till 09/30/21). We filed for H4 COS (i539) on 05/17/21 with an effective date of 05/20/21 in order to keep 8 days in my current H1B and I am continuing to stay in USA on Leave Without Pay from 05/20/21.

  3. Soon after filing the i539 my wife’s employer (we both have the same employer) filed for her extension as well to extend her H1B till 02/28/22. We are not sure if they included the relevant information about the COS or not but so far USCIS, in all probability, has 2 applications - the COS to H4 for me and my wife’s H1B extension.

  4. Now, in the meantime, my perm got approved and my employer is filing my i140 in premium and when the i140 gets approved, they’ll be filing an extension (also on premium) of my H1B since I have kept 8 days in there.

Question: since my H4 application will be pending at the time this H1B extension request, are there any complications?

Also, I’m planning to request the attorneys to include a memo justifying the causes for the H4 in the first place stating travel restrictions due to pandemic which is the primary reason we opted against going out of the country at this time.

  1. Also, during the above extension filing for me, I’m planning to apply for my wife’s H4+EAD based on my i140 approval.

Question: We are planning to do this because, as I stated above, my wife’s H1B is currently valid till 09/30/21 and they already filed for an extension of the same till 02/28/22 (her maxout) but her PERM process has just recently started and there’s no chance of her i140 to get approved in time. So, applying for her H4+EAD along with my extension (which is being filed in premium) might get her H4+EAD faster and she can continue to work based on her EAD. But the problem is from USCIS perspective, at that point, there’ll be too many applications:

  • My H4 based on my wife’s H1B

  • My wife’s H1B extension of her original H1B

  • My H1B extension of my original H1B against approved i140 where I’m planning to request for my wife’s H4 and EAD as well!

Given the above scenario and also the fact that right now traveling to India is not that good an option due to travel restrictions, is there anything that we can do to streamline this process or make it a little less complicated? Also, in case I get an RFE due to my H4 COS pending at the time of H1B extension, what options do I have?

No complications. FIle H1B extension with premium processing if possible. If it gets approved, you can send a request letter to USCIS to withdraw your H4 COS application.

Wait for her H1B extension result, if approved you don’t need to file H4+ EAD. Instead do premium processing for her H1B extension.

Keep things simple instead of over complicating. USCIS is already under immense workload and if you try to do to many applications at the same time, there are chances of screw ups.

1 Like

Thanks a lot @Kalpesh_Dalwadi for the reply…after my i140 is approved I should file for an H1b Extension only, right? Or do I also have to file for a COS from H4 to H1b (is it that since my H4 is just applied and not adjudicated – and probably won’t be adjudicated before filing h1b extension also – I won’t need a separate COS?).

When you say after H1b extension is approved I should request USCIS to withdraw my H4, if I do so, will my stay after maxout (from 05/28/21 till when the h1b extension gets approved) be still legal? I was thinking, if I withdraw the H4 based on which I continued to stay back, will that have any impact? Or is it that just because I applied, it’ll be considered as “period of authorized stay” and later withdrawals will have no impact?

Actually, even if her extension gets approved it’ll be only till Feb-2022 (till her maxout) and there’s almost 0 chance that her i140 can be filed before that…So, we are planning to move her to H4-EAD as soon as possible. But you’re right, maybe we should keep things simple, and once my Extension is approved, we can file her h4-EAD and hope that it gets approved by Feb-2022 (given she gets her extension approved till Feb-2022 first).

Too many things to juggle with…hope everything works out smoothly…thanks a lot for all your support and cooperation in these trying times.