Change of Status to H4

[piya]

Hi,
I am currently on my H1B visa which is valid till Sep 12, 2015. I have filed for an extension in June 2015 and since premium processing was temporarily stopped, had to wait till July 27 to apply for premium processing. Meanwhile my project changed and had to start another project in July. On Aug 7, 2015 got an RFE regarding the actual work location, right to control while working from home and the ultimate end client details. Attorney provided an RFE response and after that suggested it's better to withdraw the extension petition and refile as the project and work location has changed since the original extension petition was filed. So today,(Aug 31, 2015) attorney's office filed a withdrawal letter signed by my employer to USCIS.

LCA for the new locations was filed last week and hoping to refile the extension petition with that LCA this week. And it's very evident that I cannot get a decision before my H1 expiration date of Sep 12, 2015, even if I go with premium processing for this refiling.
My spouse is on H1B with an approved I-140. So please let me know if I can follow the below options to stay with my family in US after Sep 12, 2015.

1. Continue with the refiling under premium processing and if in the worst case, my H1B extension gets denied after Sep 12, 2015, can I do a Change of Status to H4?
2. Or Should I do a Change of Status on Sep 11, 2015 and then apply for an H1B through the same employer who holds my H1B?
3. If I do so, should I have to wait till my COS to H4 gets approved or will USCIS process my H4 and then immediately my new H1B, provided H1B is filed in premium?

Much appreciate you inputs on the best option to help me stay with my family and if possible continue working.

Thank you!!

[shervin143]

1. Continue with the refiling under premium processing and if in the worst case, my H1B extension gets denied after Sep 12, 2015, can I do a Change of Status to H4?
>>> No. COS need to be filed before your current I-94 expires. If H1B gets rejected post Sept 12th, then you need to leave the country and re-enter in H4 visa.

2. Or Should I do a Change of Status on Sep 11, 2015 and then apply for an H1B through the same employer who holds my H1B?
>>> You can do that. But you will need to wait until the H4 gets approved and then file H1B. It will take anywhere between 2-5 months to get the H4 approved.

3. If I do so, should I have to wait till my COS to H4 gets approved or will USCIS process my H4 and then immediately my new H1B, provided H1B is filed in premium?
>>> It is never advisable to file two different petitions at the same time with USCIS. If your file your H1B COS in premium while your H4 is pending, then if H4 gets approved after H1B approval, you status will change to H4 and you cannot work.

Your best option is to file the H1B in premium and hope that it gets approved. If it gets denied, then leave the country and return back in H4 visa. Once you are inside U.S in H4 visa, you can find an employer who can file a COS from H4 to H1B. You cannot work until the COS to H1B gets approved.

[piya]

Thanks much for your response.

1. In 2011, I have done a COS from L1 to H4 and while that was pending, filed for a COS from H4 to H1B in premium. At that time, USCIS processed my H4 first and the same day approved my H1B. Again this would have been a one off case and depends totally upon the discretion of the case officer. So if I understand it right, if I try to do the same this time, it may not work?

2. Now that H4 can apply for EAD, can I file for EAD along with my COS from h1B to H4?

Thank you in advance.

[shervin143]

1. In 2011, I have done a COS from L1 to H4 and while that was pending, filed for a COS from H4 to H1B in premium. At that time, USCIS processed my H4 first and the same day approved my H1B. Again this would have been a one off case and depends totally upon the discretion of the case officer. So if I understand it right, if I try to do the same this time, it may not work?
>>> That is not the case all the time. I think it just happened last time that you got both the approvals at the same time.

2. Now that H4 can apply for EAD, can I file for EAD along with my COS from h1B to H4?
>>> If your spouse has an approved I-140, then YES.

http://www.immihelp.com/h4-visa-ead/

[addvij]

On the same boat H1B to H4 EAD

hi,
I guess Iam on the same boat.
My Situation :
My Client --> Prime Vendor --> my Employer --> me
My employer has filed for my H1B extn. in Oct 2015 in regular processing which is still pending.
I have no client letter initially while filing for extn. ( I should be damn lucky NOT to get RFE )
My I-797 expired in Jan 2016.
My Visa expired.
My Client ends project end of June 2016. i.e in < 2 months .

Questions:
What are my options now ?
Iam eligible for H4 EAD as my spouse is H1 B 6 yrs completed with I-140 approved.

1) CAN I APPLY FOR CHANGE OF STATUS TO H4 now considering that my H1B Extn is pending ? ( IF NOT, WHY NOT )?
2) WHILE H4 STATUS CHANGE IS STILL IN-PROGRESS , IF H1B EXTN GETS APPROVED CAN I REVOKE H4 STATUS CHANGE ?
3) IF MY H1B DOESNT GET APPROVED ( DENIAL ) what are my options ? My employer(or any other) can file a new h1b but can i stay in US during that time ?
4) HOW DOES THE TRANSITION FROM H1B TO H4 EAD LOOK LIKE IN MY CASE ? I mean ( should ii go premium ? what would be idle time most likely etc. )
5) IF MY H1B gets an RFE, My employer has time to reply for RFE to USCIS. In this duration , can i start looking for a new contract position / new client who can give the client letter and REPLY TO RFE USING AMENDMENT AND NEW CLIENT LETTER ? ( if so ill have to immediately start looking for a position )


Time is ticking. Please help !!

Addvij