H4 COS Approved after H1B

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I went through the forum looking for similar questions. While there are few that are close to our situation, I couldn’t find one that is an exact match. Here is our situation. Appreciate any comments / suggestions.

Timeline:

(1) Laid off during COVID last year and filed for H4 COS (petition1) in June 2020. Effective dates: 06/30/2020 to 09/06/2020
(2) Spouse’s H1B got extended. Filed for another H4 COS (petition2) in September 2020. Effective dates: 09/07/2020 to 09/06/2023
(3) Got job offer in November 2020 and company filed for H1B Consular Processing. Since I have the valid H1B stamp from previous employer, I exited and entered the US via Canada border. Entered on new H1B. I-94 dates aligned with the I-797B from the new employer.
(4) Since I traveled out of the country while H4 COS is in pending status, it should automatically be abandoned. But that didn’t happen. Couple of weeks ago, we got a mail from USCIS that they approved H4 COS (petition1). The valid dates are from 07/09/2020 to 09/03/2024. These dates don’t align with spouse’s H1B valid dates. Clearly, USCIS approved my H4 COS in error.
(5) I sent a mail to USCIS asking them to revoke my H4 COS that is approved in error.
(6) If we go by the last action rule, I believe I’m in H4 status and cannot continue to work.

Question: Can I go to Canada via air and travel back on H1B status (since I have the valid H1B stamp from previous employer and my I-94 on the CBP website aligns with the I-797 from the employer)? I have Canadian PR and traveling to Canada is not an issue. Do you think this will work and help me to get back on H1B status? Getting visa stamping is the right solution but there are no visa appointments in Canada or in India in the near future.

It is not approved in error :slight_smile: , it is approved because you submitted COS application. It’s just that the start/end dates are off, mainly the end date as 2020-2024 seems like 4 years!

If you ask to revoke your H4 COS, won’t you be out of status from June 2020 (when you lost your H1B status) to November 2020 (when you regained your H1B status) ?

Did you check with your immigration lawyer? To me it looks like you are still in H1B status. The reason is even if your H4 COS was approved recently (after you entered on H1B status in Nov 2020), the start date is 07/09/2020 while you changed to H1B two months later in Nov 2020. This means the last action was your H1B. Last action rules,. as I interpret , do not simply mean the last case approval but is governed by the start date on the approved I797.

If your start date on the H4 COS I797 would have been after the H1B date of Nov’2020, then I would think you are back to H4 status, isn’t it? Am I missing something?

Appreciate your inputs and comments.

I don’t know if there is a way to edit the original post. I made a minor typo but a significant one. H4 COS is approved from 07/09/2021 to 09/03/2024. Instead of 2021, I typed 2020. Apologies.

I’m only saying that H4 COS was approved in error because I traveled out of the country while H4 COS is pending. It should be considered abandoned. Right? Also, I got a biometrics appointment in January 2021. But since I moved to H1B status, I didn’t attend biometrics (no show). USCIS approved my case regardless.

I scheduled a call with Murthy Law Firm for their guidance. They said I can send a letter to USCIS now asking them to revoke the H4 COS approval citing all the aforementioned reasons. And I can exit and enter the US on H1B status.

My concern is if it will cause any issues at the POE. And if there are others in similar situations and how they handled it.

Ok, now it makes sense. SO yes you are back to H4 status.

Yes! However many people have seen USCIS still approve such abandoned applications.

That is weird. Probably this is because they got to your case after May this year when they got rid of biometrics and approved regardless of whether you didn;t respond to the biometrics RFE

I agree. I think should also have send a withdrawal letter for H4 COS petition2 once you activated your H1B in Nov 2020 as you don’t want that one to be the last action after you get back to H1B again.