h1b to COS H4 to H1b

[kankur]

Here is my case.
I am currently on a H1b with a employer A and current petition is valid till Dec end (12/31/2015). Also a Extension under premium is in progress by employer A for this H1b(which may get approved anytime between 23rd Nov to 4th december 2015)
My current project is ending on Dec 2nd 2015,in case I am unable to find a project by dec 2nd 2015, they may send me back to India or grant me leaves without pay so i have to be on h4 on my husband H1b.

Now i need suggestions. on the above situation
.
1. To apply for COS to H4 i have to use my current approved petition(which is ending in 12/31/2015) or i can also use the reciept notice for the extension ?
2. If I do not get a project and have to resign to go on H4 after dec 2nd ? Can the employer A revoke my H1b ? and If they revoke it Can i again come back on out of cap H1b transfer from another employer B or the H1B transfer cannot be filed back if my old H1b is revoked and I am on H4 currently. Can someone give some more information on this.
3. If I need to apply for COS H4 after Dec 2nd does the application need to be sent to USCIS by Dec 3rd(next day to my current assignment end.) or before my currrent assignment end date.

4. Do i need to initiate the H1 transfer from Employer now so there there may be a chance the transfer application is sent to uSCIS by Dec 2nd(my current project end date) or may be after. In such a scenarios Do I need to get the COS to H4 as well to maintain status after dec 2nd.

These all relate to timelines with respect to USCIS processing time as well.
Can some1 or Shervin143 give me a detail insight on this ?

[shervin143]

1. To apply for COS to H4 i have to use my current approved petition(which is ending in 12/31/2015) or i can also use the reciept notice for the extension ?
>>> I would say, use the extended petition while filing the COS to H4. You have time to file the COS. Your extension decision might come before that. If the extension gets approved, use that petition to file the COS. If (in case) it gets declined, use your old H1B approval notice to file the COS.

2. If I do not get a project and have to resign to go on H4 after dec 2nd ? Can the employer A revoke my H1b ?
>>> Yes, they can.

and If they revoke it Can i again come back on out of cap H1b transfer from another employer B or the H1B transfer cannot be filed back if my old H1b is revoked and I am on H4 currently. Can someone give some more information on this.
>>> To transfer your H1B, a valid H1B approval notice is not needed. The CAP from that petition is what is needed. Even if the petition gets withdrawn, the CAP will still remain valid. So when you are ready to work again, the same employer or any other employer can file a COS from H4 to H1B. You cannot begin working until the COS gets approved.

3. If I need to apply for COS H4 after Dec 2nd does the application need to be sent to USCIS by Dec 3rd(next day to my current assignment end.) or before my currrent assignment end date.
>>> Technically, your application for COS should reach USCIS before your last working day.

4. Do i need to initiate the H1 transfer from Employer now so there there may be a chance the transfer application is sent to uSCIS by Dec 2nd(my current project end date) or may be after. In such a scenarios Do I need to get the COS to H4 as well to maintain status after dec 2nd.
>>> Do not file multiple different types of petitions at the same time. It will great a big status confusion. Search and read about the 'last action rule'. If you can file a transfer before Dec 2nd, then do that and join the new employer based on the receipt notice and do not file the COS to H4.

These all relate to timelines with respect to USCIS processing time as well.
Can some1 or Shervin143 give me a detail insight on this ?
>>> If you file a COS from H1B to H4, it will take about 4-6 months to get a result. In the mean time, if you want to get back to H1B and file a COS under premium, then H1B will get approved first and later when H4 gets approved, your status will change back to H4 and you cannot work. If yo do not want to get into that situation, then the best approach is to leave the country when your job ends and return back on H4 visa. That will put you back into H4 status and there will be no H4 petition pending with USCIS. You can file a COS from H4 to H1B anytime without worrying about any other pending petitions with USCIS.

[kankur]

Hi Shervin,

Thanks for the updates.

for Point 1 .
If the Extension petition did gets approved at uscis under premium, but it still takes around one week or more to get the approved petition copy. So in such a scenario this will go past the current assignment date. In such a case we wont have the Extended approved petition copy to file the COS for H4 by the assignment end date.
I know there is a way to file the COS by filling the documents sending them to USCIS by post or overnight,but is there another way like e-file or something so we have a way to file it online and get the reciept number immediately.

Does H1 to H4 Cos also have something like premium ?

Point 2
" The CAP from that petition is what is needed. " ----- What does this exactly mean ? ??

If I resign before I get the extended approved petition in hand. So i only have the original petition with me that is valid till Dec 31st.
In such a case There is a high chance that after I resign the Extended petition gets approved at USCIS and I will definately not get the petition copy as it would go to employer and potentitaly they may or may not revoke that.
So If they revoke , Will they be revoking the extended petition or current petition as well and In such a case Can I still used the current original petition later to H1B tranfer or even if they do not revoke and Can I still use the only original petition with me for H1B transfer(actualy that would be a out of cap filing as there is nothing like H1B transfer right?)

>> If my last working day with project is say Dec 2nd and i have 2 more days to leave US to go back to India but I dont go back and resign any day after 2nd Dec , technically there would be another payrol run by my employer for December 1st half with roll off settlements and If there is a H1b transfer initiated by another employer between Say 2nd Dec and Dec 15th say it is on Dec 10th or any day. Will I be out of status from 2nd Dec/4th Dec to The day reciept is filed for H1b transfer Even though there would be payroll run for final offboarding settlement. Can these Dec payrolls work to confirm a valid status for that window if there is a gap between the current project end date and new Transfer reciept number ?


Point 4.
As you suggested to go back to India and travel back on H4 visa in 3-4 weeks. If I initiate a H1b transfer now with employer B and travel back to india after dec 2nd from employer A and return on H4 say after resigning from Employer A.(and if they try revoking my current petition.)
in such a scenario will it affect any of the below things
- travel back on H4
- H1b transfer which is in progress by employer B

1. To apply for COS to H4 i have to use my current approved petition(which is ending in 12/31/2015) or i can also use the reciept notice for the extension ?
>>> I would say, use the extended petition while filing the COS to H4. You have time to file the COS. Your extension decision might come before that. If the extension gets approved, use that petition to file the COS. If (in case) it gets declined, use your old H1B approval notice to file the COS.

2. If I do not get a project and have to resign to go on H4 after dec 2nd ? Can the employer A revoke my H1b ?
>>> Yes, they can.

and If they revoke it Can i again come back on out of cap H1b transfer from another employer B or the H1B transfer cannot be filed back if my old H1b is revoked and I am on H4 currently. Can someone give some more information on this.
>>> To transfer your H1B, a valid H1B approval notice is not needed. The CAP from that petition is what is needed. Even if the petition gets withdrawn, the CAP will still remain valid. So when you are ready to work again, the same employer or any other employer can file a COS from H4 to H1B. You cannot begin working until the COS gets approved.

3. If I need to apply for COS H4 after Dec 2nd does the application need to be sent to USCIS by Dec 3rd(next day to my current assignment end.) or before my currrent assignment end date.
>>> Technically, your application for COS should reach USCIS before your last working day.

4. Do i need to initiate the H1 transfer from Employer now so there there may be a chance the transfer application is sent to uSCIS by Dec 2nd(my current project end date) or may be after. In such a scenarios Do I need to get the COS to H4 as well to maintain status after dec 2nd.
>>> Do not file multiple different types of petitions at the same time. It will great a big status confusion. Search and read about the 'last action rule'. If you can file a transfer before Dec 2nd, then do that and join the new employer based on the receipt notice and do not file the COS to H4.

These all relate to timelines with respect to USCIS processing time as well.
Can some1 or Shervin143 give me a detail insight on this ?
>>> If you file a COS from H1B to H4, it will take about 4-6 months to get a result. In the mean time, if you want to get back to H1B and file a COS under premium, then H1B will get approved first and later when H4 gets approved, your status will change back to H4 and you cannot work. If yo do not want to get into that situation, then the best approach is to leave the country when your job ends and return back on H4 visa. That will put you back into H4 status and there will be no H4 petition pending with USCIS. You can file a COS from H4 to H1B anytime without worrying about any other pending petitions with USCIS.

[kankur]

Hey Shervin,

can you reply to my queries below.

Thanks

[shervin143]

for Point 1 .
If the Extension petition did gets approved at uscis under premium, but it still takes around one week or more to get the approved petition copy. So in such a scenario this will go past the current assignment date. In such a case we wont have the Extended approved petition copy to file the COS for H4 by the assignment end date.
I know there is a way to file the COS by filling the documents sending them to USCIS by post or overnight,but is there another way like e-file or something so we have a way to file it online and get the reciept number immediately.
>>> You can e-file I-539 and get a confirmation. You still need to send the documents through post. That will help in your case.

Does H1 to H4 Cos also have something like premium ?
>>> Nope. There is no premium processing for H4.

Point 2
" The CAP from that petition is what is needed. " ----- What does this exactly mean ? ??

If I resign before I get the extended approved petition in hand. So i only have the original petition with me that is valid till Dec 31st.
In such a case There is a high chance that after I resign the Extended petition gets approved at USCIS and I will definately not get the petition copy as it would go to employer and potentitaly they may or may not revoke that.
So If they revoke , Will they be revoking the extended petition or current petition as well and In such a case Can I still used the current original petition later to H1B tranfer or even if they do not revoke and Can I still use the only original petition with me for H1B transfer(actualy that would be a out of cap filing as there is nothing like H1B transfer right?)
>>> All the petition can be revoked by the employer and that will have no impact on your future filing. When your H1B first got approved for the 1st time, along with the petition approval, a quota (CAP) was allotted to you by USCIS. No one can revoke the CAP except for USCIS (in case of fraud). A CAP once secured will be valid for 6 years. Within that 6 years, you can file extensions or transfer. Every petition that gets approved for you by USCIS will be tied to that CAP. To prove that you are already CAP counted, you need to provide a copy of your H1B approval notice (irrespective of whether it is active or revoked). USCIS will be able to get the CAP associated with your petition and see how much time is left in your H1B 6 year CAP.

If my last working day with project is say Dec 2nd and i have 2 more days to leave US to go back to India but I dont go back and resign any day after 2nd Dec , technically there would be another payrol run by my employer for December 1st half with roll off settlements and If there is a H1b transfer initiated by another employer between Say 2nd Dec and Dec 15th say it is on Dec 10th or any day. Will I be out of status from 2nd Dec/4th Dec to The day reciept is filed for H1b transfer Even though there would be payroll run for final offboarding settlement. Can these Dec payrolls work to confirm a valid status for that window if there is a gap between the current project end date and new Transfer reciept number ?
>>> You are over thinking this. Such a short period of gap between employment will have no impact. 2-3 days between employment is no big deal.

Point 4.
As you suggested to go back to India and travel back on H4 visa in 3-4 weeks. If I initiate a H1b transfer now with employer B and travel back to india after dec 2nd from employer A and return on H4 say after resigning from Employer A.(and if they try revoking my current petition.)
in such a scenario will it affect any of the below things
- travel back on H4
- H1b transfer which is in progress by employer B
>>> It won't work. If you file the transfer, then you should not leave the country or your transfer will get denied. You should leave the country, get the H4 visa stamped and return back on H4 visa. Once you are back in U.S on H4 visa, the employer should file the COS from H4 to H1B.