H1B visa process during F2 visa pending

My PERM and I-140 got approved recently and currently I am in process on applying my H1 visa however the attorney thinks that the COS may not be approved even if H1bvisa gets approved due to pending F2 visa. After my H1B visa 6 years maxed out last year in Dec, I converted into F2 as my wife was on STEM OPT. My F2 is currently pending with biometrics being done. My wife is on STEM OPT until 10th Sept 2021 and have valid H1B visa afterwards. Here are my questions:

  1. What are the options to convert to H1B within the country with a pending F2 application?

a. Can I withdraw my existing F2 application once H1B is applied?

b. Can a pending F2 cause an RFE or denial for H1B?

c. Can we request USCIS to expedite requesting an answer from USCIS? With F2 approved/denied, can we still apply for H1B in premium or does this need a COS and cannot be done in premium.

  1. Travel to India so that pending F2 is automatically denied. Apply for H1B in premium and get H1B stamped on passport via consular processing. Consular processing is currently open only for a few visas under NIE. I fall under a NIE category as I work in Food manufacturing.

a. Is this a good option?

b. What are the steps we need to take for NIE?

c. Do we need to apply for NIE while in India or can this be done here?

d. Can NIE and H1B applications both be submitted at the same time?

Are there any other options that we can consider?

Thank you all for your help and time and God Bless!

Withdrawing F2 will cause you to be out of status from when your last H1B status expired up until your stay. Also this means USCIS may approve your H1B with consular processing as you wont have a valid or a pending status at the time of applying H1B with a COS.

If H1B is applied with a COS, USCIS may issue an RFE asking you to provide a proof of your existing status. However this should not be the reason for your H1B denial if at all. At most USCIS can approve H1B with consular processing if they think you don’t qualify for COS.

You may request an expedite for your pending COS to F2. I would suggest upgrading your H1B to premium processing once your F2 is approved.

This is for you to make a choice between COS vs Consular processing.

You can get a letter from your employer explaining the job/duties and how it qualifies for NIE (one of those 16 industries).

Because you will be applying for H1B visa either via dropbox or interview, you will need to include the letter along with other documents if dropbox or carry with you to interview and present to the VO.

As mentioned above, NIE letter can be included in the dropbox packet or present to VO during interview.

Thank you so much Kalpesh for the responses to my questions.