What are the risks in nunc pro tunc H1B consular processing while H1B to H4 status is pending?

I lost my job due to Covid in Sep 2020 on H1B and immediately transferred to H4 on the last day. The status on the H4 transfer is still pending due to USCIS taking long time to process applications.

A new employer (non consulting, non 3rd party, regular employer) recently filed nunc pro tunc H1B and received an RFE (I cannot start till new H1b approved) as ‘provide the persons immigrant status while filing the application’. The attorney said you may need consular processing. I have never been out of any status. Hence are there any risks in consular processing of H1B?

OR get H4 stamped from consulate and then continue with the process?

Thanks again,

P.S - I have an approved I140

Hi, I was in a similar situation recently and my attorney responded to the RFE by requesting USCIS to convert the case to consular processing. The petition was approved immediately and I’m currently waiting on the approval notice to arrive by mail. I think the risks of converting to consular processing are far less than leaving the country for H4 stamping in the current circumstances.

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Hi Sv21,

Thank you. But does that apply to staying in the country for >6 months waiting for H4 COS? My understanding is leaving the country after 180 days (which is the case) and then doing consular processing may result in you showing up as illegal for the number of days you waited for H4 COS to get approved. Please correct me if I am wrong.

If you request for consular processing, you need not leave the country until you get the H1 approval notice. In my case, I was 4 months into my H4 COS application when my H1 was filed under consular processing. I’m not aware of the 180 day limit.

@rishi2021 @sv21 - Could you please update when happened finally to your case? I am same boat as you guys. Got RFE for justify status at the time of filing petition. Please Please respond!!

I raised expedite request with 2 senators and 1 congressman. There were valid reasons in the expedite (health related). I got a job and also told them in rfe response to approve it because there are genuine reasons for not being able to go to India. They issued a double rfe avian for showing status. In the meantime Biden’s admin removed the biometrics requirement. Then my h4 got approved after 9 months for wait. And then the H1 got approved based on that. A gut wrenching experience of follow ups but finally some peace. ATB.