H4 to H1 without COS | Implications

Hi @anil_am22 or other experts

Appreciate if you could reply. My spouse is currently on H4 and H4 EAD both valid till Sep 2023. Her current employer is willing to sponsor H1 in 2022 lottery process. Here are my questions:

  1. What happens if her H1 application is not picked in lottery. Her current H4 status and H4 EAD will still hold good, correct?
  2. In a case lets say her H1 application is picked up in lottery, Can we ask employer to just file H1 but not H4-H1 COS? Is that an option at all? Our thought process is with this approach even if the H1 is approved, spouse will still able to work on H4 EAD and H1 will just act as a backup and we can apply for H4-H1 COS if situation demands like if my H1 is at risk of RFE etc., Please suggest if any issues with this idea.
  3. In the above scenario 2 where h4-H1 COS is not applied, can my spouse travel to india and still come back with H4 stamping after the H1 approval?

Thanks.

Correct.

The employer can file H1B with consular processing (without COS), that way you control when you want to switch to H1B. When you want to change to H1B, you can travel outside the US, get H1B stamp and come back.
If you don’t want to travel to get H1B visa stamp, your employer can simply file a H1B amendment to convert from consular to change of status from H4 to H1B.

Sure.

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Hi Kalpesh,

Thanks a lot for your quick response. Do you suggest applying for H4-H1 COS along with H1 application or the backup approach i was thinking? Trying to understand if any risk going through consular processing(without COS).

Regards,
Vamshi G

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You know your situation best so it is up to you to decide.

I don’t see any issue if the documentation is proper. Direct full time has better prospect of successful stamping as compared to contracting. Only con could be any travel restrictions in future due to pandemic and difficulty in getting visa appointment.

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