H4 to H1B with RFE regarding H4 approval

Please help:

I was a H1B visa holder and I lost my job on Jan 31st 2020. In order to maintain legal visa status I have applied for I-539 (H4 visa) on March 27th (after 60day H1B grace period) and is currently under processing status for the past 120 days.

I managed to get a job and the company had filed for my H1B visa transfer in premium processing.

However, USCIS issued H1B RFE (requesting for additional information) on July 1st 2020 asking me to provide H4 approval by Oct 3rd 2020, so that they can process my H1B. But the I-539 (H4 visa) application is still under processing with USCIS and it is estimated to take at least 12 -15 months to complete the processing with the current normal processing times as per USCIS website.

So, on July 16th I raised a request and USCIS mailed me a document asking for additional information. I haven’t received the mail until July 28th.

Meanwhile, since it is getting delayed I have approached the local congressmen to help me expedite the case on my behalf - July 23rd.

On July 27th there is a change in status on USCIS stating that they received my expedite request.

On July 28th I emailed them the required documents along with the mail I received. Meanwhile, my request to expedite was denied (I assume it was for the request they received from congressmen on July 27th).

  1. What should I do at this point? I am very stressed out.

  2. Should I raise a new request to expedite?

  3. Since I already have a valid H1B stamping, is it advisable to withdraw my H4 application and respond to RFE to move the H1B to counselor processing? I can travel out of the country (Mexico or Canada) and come back with new I94 without a need for stamping as I already have an H1B stamping valid until Aug 2022.

  4. I can travel out of the country (Mexico/Canada) so that my H4 which is under processing gets invalid as I traveled during the processing state. And you can respond to the RFE that the H4 is no longer active, and move H1B to counselor processing. I can come back with a new I94 as soon as it is approved.

  5. If I travel out of country, since my H4 will be terminated, will my statues from March 27th through departure will be legal or considered as overstay?

You status for the time H4 was pending will be considered legal even if you travel with the intention of abandoning the H4.

How ru proceeding with your case… I am in same boat as well…

Continuing the discussion from H4 to H1B with RFE regarding H4 approval:

After speaking to immigration attorney, I decided to go with with consular processing. There is some risk with this option, however I have no other option. Hoping for the best.

Ok thank u…Hope that works out…

With consulates being closed for H1B stamping wanted to check how you are planning to get stamped once approved in consular processing. My attorney said I have to wait for H4 approval since consulates are currently closed for H1B stamping.

I have a valid h1b stamping till aug 2022. So the attorney said I can use the new approved I797 and the current stamping at the immigration to enter US.

ok got it. thank you.

Can you update on the status of your H1B application.

I travelled to Mexico and came back today. it went okay. the immigration agent did question a lot though, but I was approved to enter without any legal questions or troubles.

Nice, Congratulations.

Thank you for the details. I am also undergoing same issue. Can you kindly provide me more details on how you approached the situation and what is consular processing.

Thank you!

Thank you. I wish you good luck with your visa process as well.

Hi Nirisha,
As I mentioned, the H4 approval was taking way longer times and there is no way that I could expedite it. Even the two expedite requests I placed got denied as I havent even had my Bio-metrics yet and there is no way that they can process the biometrics faster, esp they did not consider that in my case. So I did call up attorney to find what is my way out for this. They gave me two options

  1. Either wait for H4 to be approved
    2 Or respond to RFE stating to have it approved in counselor processing (which means you have to travel out of the country, get the H1B visa stamped and reenter USA. ). Now when I travel out of country the in process H4 will get invalid since I crossed the border. And when I come back I cans how the approved I797 and already stamped H1B visa.

So i decided to go with option 2 as waiting for H4 takes a lot of time and it is very uncertain at this point. So I traveled to Mexico and returned back to USA.

This is what worked based on my scenario, however you better check with the attorney as well to make what works the best for you.

Hope it helped.

Thank you so much for your response.
So how did you respond to rfe that required a h4 result.
Please below is my email and any details you share will be a great help as I am undergoing same thing and as consulates are closed it is even more harder. So kindly provide the response you gave rfe.

Thank you so much!

email: nirishach@gmail.com

Hi, I am in a similar situation right now. Did you have to leave to US as soon as the RFE response was submitted to USCIS or did you wait until you received H1B approval under consular processing (I-797B)?

Hi Nirisha, I am in the same boat now and would love to hear your experience. Did you have a valid US stamp in your passport or did you have to visit a consulate for stamping?

I’m curious. Enough time has passes so how did you guys proceed with your cases? Any updates will greatly help the community.

I had to travel out of the country. I travelled to Mexico and came back with the old H1B valid stamping I had ony passport. Since I already had a H1b stamping from my previous employer, though I lost my job, my visa was not expired on the passport so it was valid. Hence I was legally able to enter Mexico with a valid US visa, and return to USA the same day. However there were questions by the immigration officer on why I had to travel. When I told him that I travelled to get my H1B activated, he asked plenty of questions regarding what was the existing H1B on my passport, why is that i had to activate when it is already valid on my passport, what about my H4, regarding my pending change of status of H4 and change from H4 to H1b etc. After all the questions he let me enter into the country.

Thank you for the update @vaniaparnap

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