H4 to H1B consular approved - Need information on Amendment to apply for COS

USA
1

Hello Anil,

We have applied for H1B visa in consular mode and it got approved a month ago, but her current H4 extension is in process with USCIS and biometrics were given a month back. Meanwhile I got my H1B extension approved.

Her employer is suggesting to apply for Change of status amendment. Can we apply for COS amendment, with H4 receipt? Anyway primary of H4 is approved. So, will this be taken into consideration for the amendment?

We would like to go for stamping to India for her to get H1B stamped, but we are scared as she is not working from past 2 years, although she worked earlier.

Thanks in advance! Your response is highly appreciated in this critical time.

2

Hi @MaheshRD

You can apply H1B change of status with H4 receipt. I do not see any issue. Its a normal thing and lot of people do it.

3

Thanks, @Anil.Gupta.

Your response is helpful. We were thinking that her H4 status is not approved and hence it might cause problems. By seeing your response, I got some positive energy to apply for COS.

Is there any case that they can deny the COS amendment? In case of denial, can she go for H1B stamping in India?

4

Hi @MaheshRD

Change of status denial is possible. If it is denied, you can go for H1B visa stamping outside US. That’s fine and no issues.

5

Thanks @Anil.Gupta.

Even i felt exactly the same. But, her employer is saying the COS amendment will be a kind of new i-129 with status change and if it is denied there is no chance of stamping. Is it true??

I am in dilemma to choose between COS amendment and stamping. And she is on H4, not H4 EAD as well. If H1 is denied, then she cannot work. Please suggest the right path for us to move forward.

6

Hi @MaheshRD

What your employer is talking about is H1B amendment denial itself.

There are two things that can happen:

  1. H1b Amendment approved but change of status denied. In this case, USCIS will automatically change it to consular processing approval.
  2. H1B amendment denied with change of status denied. In this case, complete application is denied.
7

Thanks for the reply Anil. Sorry for late response from my side.

To clarify, we are not going to change the location of the original petition. Then i hope its going to be an amendment to change the consular to Change of status. Please confirm. In this case, its only the COS approval is needed from USCIS and if it is not approved, then we can go for stamping. I hope there won’t be any effect on the original H1B consular one.

8

Also mentioning here about one your post, to align my case along with that.

Hi Anil, We already have thread running in the forum. But just wanted to post things. But just replying here to make the case for informative to you :

my case falls in the below of your scenario:
H4 to H1B change of status work start date?
In simple H4 to H1B case as well, where you filed H1B with change of status in lottery. You can start working on Oct 1 or the start date of your H1B as approved by USCIS.

The change of status happens automatically on the H1B approval date and you should START working i.e. your payroll should be run to keep you in H1B status.
If you do not start working on H1B after its approval, you are violating your H1B terms.

Even in case of H1B premium processing, you should wait for approval before starting work.

But the thing is, it is approved in Consular mode and her H4 extension is in progress currently, we might get it by May as per the USCIS timelines mentioned. In this case, can we file an amendment only to change the H1B from Cosnular to COS?? Or We have to definitely go to stamping to india as the consulate mentioned as INDIA.

9

Hi @MaheshRD

I don’t think you can file amendment.

10

oh ok… Once we apply in consular, we cannot change it to COS then?

11

Thanks @Anil.Gupta.

Finally, we have decided to go for stamping on her visa.

Can my kid go with her for stamping and get dropbox?? Or I have to go to india in order to get him stamped?

12

Anyone can go for stamping. Primary H1B is not required.

13

Hi I am in the same situation as yours. Applied for COS from H4- H1B. Please let me know what happened to your case. That will be really helpful and will keep me positive