Appreciate your earliest response in the below case;
I came to US on H4(dependant visa) in March 2021 on my spouse’s h1B. The H4 visa is valid till March 2023.
I also have a valid H1B approval notice received in Sep 2020, which was got picked in the 2020 lottery.
Recently my spouse(H1B Holder) got another job in US and new employer transferred my spouse’s H1B in Nov 2021. My Spouse’s new H1B is valid till Oct 2024.
Along with my spouse’s H1B transfer, my spouse’s new employer filed H4 extension for me and my kids (they kept me as the Primary Applicant for H4 Extension).
H4 extension approval is still pending.
As I already have H1B approval, I am getting a new employer in the US and they are starting filing COS (H4 to H1B) petition for me.
My Questions are;
Once COS is approved by USCIS;
Whether my visa status will change to H1B?
I assume my spouse’s immigration attorney (of the new employer), needs to file my H4 extension withdrawal request. Is that true?
If H4 extension withdrawal request is submitted, what will happen to my kid’s H4 extension as I was the Primary applicant at that time? Will H4 extension petition get canceled for them also? Will they move to Out of VISA Status or need to leave US?
Is there any way I can apply H4 extension for my kids along with my COS petition? or do I need to wait till my COS gets approved?
Yes if your H1B is approved with change of status.
You may or may not withdraw. If H1B is approved with COS before your H4 EOS is approved, H4 EOS may be denied as you will no more be in H4 status.
Whether you withdraw your H4 EOS application ( in that case kids H4 will be denied) or not, I recommend filing for H4 EOS for your kids along with your H1B/COS application or based on your spouse’s H1B.
I think you can. Just consult your employer’s immigration lawyer about your situation and they can suggest the right course of action.
Forgot to mention : My current H1B approval notice is not yet stamped.
In continuation with Question 1, if the new H1B is approved with COS, I assume they will issue I-797A approval notice. In that case,
Will it be with I-94 approval also? Or will it get approved as Consular Processing/Notification?
Just wanted to confirm - do I need to go to India or nearby consulate for stamping to get H1B as “active” ?
Reg Question2, will there be any chance of H4 Extension getting approved after H1B transfer (with COS) gets approved? I mean if the attorney is not going to withdraw H4 extension petition.
There have been such instances however that approval will means nothing (as you will be in H1B status already) except it may only bridge the gap between H4 I-94 expiry and the H1B COS start date. In your case your current H4 is valid till 2023 so there will be no gap.
Thanks Kalpesh for the quick response.
As I said, my COS petition (with my new employer) will start next week. Does my spouse’s attorney need to file H4 extension withdrawal for me ( by continuing the H4 extension for my kids alone) at the same time? Will it be risky, if my COS is getting RFE or rejected, I may go out of status right?
So can we wait till my COS gets approved, then
(a) either my spouse’s attorney can initiate withdrawal of H4 extension for me and continue with H4 extension for my kids with my spouse’s h1B?
(b) or my spouse’s attorney can initiate H4 extension withdrawal for me and the kids together. It will enable my employer’s attorney to start H4 extension for my kids along with my COS petition. Here also the same risk right, as I and my kids will go out of status if my COS is getting RFE or rejected.
So considering all the above, what is the best option for H4 extension to my kids with no risks?
If your H4 EOS is withdrawn, your kids H4 EOS will be denied. You mentioned your H4 is valid till 2023 and so I believe your kids are also good till 2023?
If COS from H4 to H1B is denied you will still be in valid H4 status as your H4 I-94 is good till 2023. In this case you will need to go for consular processing to switch from H4 to H1B.
That is up to you to decide. If you go with this decision, it is better to apply new H4 EOS application for your kids based on your approved H1B.
No risk if your COS is denied as your/kids H4 I-94 is still valid till 2023. Risk is only when your I-94 are expired while your COS/EOS is processing and gets denied, you go out of status.
Just my two cents…you should discuss all scenarios with your attorney and have them suggest right course of action rather then trying to figure out on forums as your case can get complicated based on timing of different applications.
Thanks Kalpesh for the reply.
I understood most of your points except the below
“If COS from H4 to H1B is denied you will still be in valid H4 status as your H4 I-94 is good till 2023. In this case you will need to go for consular processing to switch from H4 to H1B.”
Can you please throw more lights on the above as why we need Consular Processing here? Do you intended to say if COS(H4 to H1) is approved without I-94 approval?
My new employer starting the COS for me, they told me that, in case if H1B gets approved with Consular processing, I may need to go to India for stamping. As I stated earlier, my current H4 is valid till 2023 and H4 EOS is still in progress.
So in case if I need to go to India for stamping and if my H1B Visa gets rejected (worst case), can I re-enter US with my current H4 or wait for my H4 EOS to be completed?