H1b while COS is pending

[Massi]

Hello,

I have a confusing situation with my visa. Hoping to get an answer here. Here is a summary of my situation:

-I was on a short term H1b which had an expiration date of 5/31/2016. The expiration date on the I-94 was the same.

-Applied for a change of status to H-4 before the end of May and USCIS sent the receipt notice. The case is still being processed.

-I got a new job offer from the same employer with a start date of September 1st and they are willing to apply for H1b again (or extend it) and also do premium processing. The paperwork is almost done.

My concern is if we have to wait until the change of status is approved to apply for H1b or it can be done while the change of status is pending?? I heard from a customer service representative at USCIS that I should first withdraw the change of status and then apply for H1b extension, but I don't know if that would be possible since my I-94 has expired on May 31st and as far as I know if I withdraw my change of status application I will be out of status and need to leave the country. Please note that I am looking for a way to get my H1b without leaving the country.

Any information in this regard is greatly appreciated.

[raghvi]

Hello,

I have a confusing situation with my visa. Hoping to get an answer here. Here is a summary of my situation:

-I was on a short term H1b which had an expiration date of 5/31/2016. The expiration date on the I-94 was the same.

-Applied for a change of status to H-4 before the end of May and USCIS sent the receipt notice. The case is still being processed.

-I got a new job offer from the same employer with a start date of September 1st and they are willing to apply for H1b again (or extend it) and also do premium processing. The paperwork is almost done.

My concern is if we have to wait until the change of status is approved to apply for H1b or it can be done while the change of status is pending?? I heard from a customer service representative at USCIS that I should first withdraw the change of status and then apply for H1b extension, but I don't know if that would be possible since my I-94 has expired on May 31st and as far as I know if I withdraw my change of status application I will be out of status and need to leave the country. Please note that I am looking for a way to get my H1b without leaving the country.

Any information in this regard is greatly appreciated.

One of the criteria for successful COS is that one needs to be in a valid status to ho to another status. As of now, with a pending COS to H4, you technically are in a period of authorized atay, but not actually n a valid status. If your employer files for a COS to H1, it will most probably result in an RFE asking you to prove your current valid status. As you only have H4 receipt and not an approval of H4 , your COS will most likely get denied. The petition may still get approved as consular process, which will need you to leave US and re enter on a valid H1 visa, in order to move to H1 status.

This is my opinion not legal advice

[Massi]

One of the criteria for successful COS is that one needs to be in a valid status to ho to another status. As of now, with a pending COS to H4, you technically are in a period of authorized atay, but not actually n a valid status. If your employer files for a COS to H1, it will most probably result in an RFE asking you to prove your current valid status. As you only have H4 receipt and not an approval of H4 , your COS will most likely get denied. The petition may still get approved as consular process, which will need you to leave US and re enter on a valid H1 visa, in order to move to H1 status.

This is my opinion not legal advice

Thank you for your response.

I was just notified that my employer has already submitted I-129. Can you give me your opinion about what I should do or what is going to happen? Is there a chance my COS to H4 gets denied because of this? Should I withdraw one of the applications now?

Staying in the country is actually more important for me than getting the H1 at this time. So if I have to go out of the country to get H1 stamp, I would prefer to forget it and just go on H4 status.

[raghvi]

Thank you for your response.

I was just notified that my employer has already submitted I-129. Can you give me your opinion about what I should do or what is going to happen? Is there a chance my COS to H4 gets denied because of this? Should I withdraw one of the applications now?

Staying in the country is actually more important for me than getting the H1 at this time. So if I have to go out of the country to get H1 stamp, I would prefer to forget it and just go on H4 status.

As I said earlier, I believe your H1 I129 will result in an RFE. I would suggest that you let your employer know that you have a COS to H4 already pending and if asked forprovide, them the H4 receipt notice copy. If they still want to go ahead with H1, no harm. Let both H4 and H1 process independently. Eventually either your H1 will be approved as consular process or H4 will be approved first. If H1 is approved as consular process and you don't want to leave US, let the employer know. Your H4 request will not be cancelled just because you applied for H1.

This is my opinion not legal advice.

[Massi]

As I said earlier, I believe your H1 I129 will result in an RFE. I would suggest that you let your employer know that you have a COS to H4 already pending and if asked forprovide, them the H4 receipt notice copy. If they still want to go ahead with H1, no harm. Let both H4 and H1 process independently. Eventually either your H1 will be approved as consular process or H4 will be approved first. If H1 is approved as consular process and you don't want to leave US, let the employer know. Your H4 request will not be cancelled just because you applied for H1.

This is my opinion not legal advice.

Thanks a lot. You are being very helpful.

The employer knew about the pending COS to H4 and I did provide the H4 receipt notice before they submitted the H1 application. I think they have included it in the application.

So if H1 is approved as consular process but I don't want to leave the country, I can ignore it and just wait until H4 is approved. Is that right?

On the other hand, is there a chance that H1 gets approved NOT as consular process? If there is a chance I might decide to make it premium processing.

[Massi]

I am still looking for some answers. This is really urgent and important. Please help.

Summary: I applied for COS to H-4 before I-94 expiration. My employer applied for H1b after my I-94 expired and while the COS to H-4 was still pending. The employer knew about the pending COS and I did provide the H4 receipt notice before they submitted the H1 application. I think they have included it in the application. Both of the applications are now pending.

1. How probable is it for the H1 to get approved NOT as consular process? If there is a chance, I might decide to make it premium processing.

2. If H4 gets approved first, and then H1 gets rejected (or approved as consular process), can I remain on H4 status?

3. If H1 gets approved first but as consular process, can I just ignore it and wait until H4 is approved? (I don't want to leave the country in any case)


I very much appreciate your help.

[raghvi]

I am still looking for some answers. This is really urgent and important. Please help.

Summary: I applied for COS to H-4 before I-94 expiration. My employer applied for H1b after my I-94 expired and while the COS to H-4 was still pending. The employer knew about the pending COS and I did provide the H4 receipt notice before they submitted the H1 application. I think they have included it in the application. Both of the applications are now pending.

1. How probable is it for the H1 to get approved NOT as consular process? If there is a chance, I might decide to make it premium processing.

2. If H4 gets approved first, and then H1 gets rejected (or approved as consular process), can I remain on H4 status?

3. If H1 gets approved first but as consular process, can I just ignore it and wait until H4 is approved? (I don't want to leave the country in any case)


I very much appreciate your help.

1. Highly improbable.
2. Yes.
3. Yes.
This is my opinion not legal advice.

[Massi]

I just called USCIS to ask some questions. I was told that if H1 is processed first and approved as consular process, I will have to leave the country even though I will have a pending COS to H4 which was filed before I94 expiration!!! Does that sound right? or the CSR might have misunderstood the situation?

When I call USCIS is there a way I can speak with someone higher up? I asked to talk to an officer or supervisor and he said no!

[mdson]

I just called USCIS to ask some questions. I was told that if H1 is processed first and approved as consular process, I will have to leave the country even though I will have a pending COS to H4 which was filed before I94 expiration!!! Does that sound right? or the CSR might have misunderstood the situation?

When I call USCIS is there a way I can speak with someone higher up? I asked to talk to an officer or supervisor and he said no!

Hi Massi,

I am in the same boat. I had my H1b till Feb 2019 But I got laid off in Oct 2018. I had applied for H4 COS in Oct which is still pending (looks like it is gonna take 10 more months). My H1b and i94 are expired in Feb 2019. Recently I got an offer and the company is filing for my H1b again. May I please know what happened to your case? Your help is greatly appreciated.