F1 to H4 status within USA

[enjoyee]

Hi,

My wife is currently in F1 Opt and her employer is not planning to apply for H1B visa. Her F1 opt is expiring next July. Her employer is fine with her working in H4 EAD . Her F1 Opt is expiring next July . I am not sure if we would be traveling now because of the covid situation. My H1b visa was also just renewed and because of the current executive order, I am not sure if she would be allowed to get H4 stamping and re enter the country if we are able to leave the country now. She is also applying for jobs and trying to find an employer who will sponsor H1b . These are my following questions.



1. I see the F1 to H4 visa conversion is taking longer. If I apply now and her conversion is still in processing by next July when her F1 opt expires, would she be allowed to stay in the country?

2. If I apply for both H4 and H4 EAD , when should she inform her current employer that she can no longer work ? can she wait till her H4 is approved ?

3. If she finds an employer when the conversion is still processing, is there a process of cancelling the F1 to H4 process?

4. I am also looking for new opportunities. If I change employment when the F1 to H4 is still processing, would it be affected. Should I file any amendment with my new I797? Would my existing I140 petition still be valid for getting her H4 EAD ?

5. If we are able visit India when the process is still going through and change visa, would the F1 to H4 be automatically cancelled ? If so should we file a new application for the H4 EAD ?

Thanks.

[rkk09]

Hi,
Please see my response below.
1. Yes. With the help of change of status receipt notice, she is allowed to stay in the USA.
2. You can wait until you get status or till OPT expires. If you get the status on H4 then immediately, she has to stop working and can resume the work once get H4 EAD Approval.
3. Change of status is not depend on Employer. If you dont want to proceed with change of status then you can withdraw.
4. Your transfer may impact H4 adjudication, if your previous Employer withdraws your H1B petition. I hope, USCIS will issue RFE to seek the new petition details. And regarding I-140, If I-140 sponsoring Employer not going to withdraw I-140 petition within 180 days, you are good to proceed with that.
5. If you are travel during petition pending, you can still go for stamping to change the status to H4. Once you get H4 stamping then you can withdraw H4 change of status petition and H4 EAD can be still in the process. Most of the times, USCIS may issue RFE on H4 EAD to get H4 status proof of documents. With that, you can move forward.
Thanks