H1B to H4 to H1B

[trenda]

I have an approved I-140. My spouse is on H1B. Due to layoff at her company her position was impacted beginning last month. She had a 60 days grace period to search for a new job.

However, in case she cannot find one, she would need to change her status to H4 visa(I-539).

While changing her status, we would file for an EAD card(I-765) as well which takes 4-5 months.

Consider a scenario where my spouse files for change of status and EAD card on 20th December. Following this my spouse gets a job in January.

In such a case, since she is not authorized to work would she be eligible to get a job on H1B ? Also what would be the process that would follow ?

[merry678]

Hello,

If your spouse files for a change of status to H4 (I-539) and concurrently applies for an EAD (I-765) card, the change of status to H4 would take effect once approved. While the change of status is pending, your spouse would not be authorized to work under the H1B status because the H1B status would no longer be valid once the change of status to H4 is approved, even though she applied for an EAD.

Now, if your spouse gets a job in January, here are the key considerations and steps:

H1B Employment Authorization:

If your spouse gets a new job and intends to return to H1B status, the employer would need to file an H1B petition on her behalf, which is an H1B transfer (I-129 petition).
The employer cannot begin the job until the H1B transfer petition is filed and approved by USCIS, or the new employer may begin her employment once the petition is filed and the change of status is requested if she is in lawful status.
Impact of Pending H4 Status: SpotifyStats

If her H4 status is approved before the H1B petition is filed, she would no longer be in H1B status and would need to wait until the H1B transfer petition is approved before she can begin working.
If her H4 status is not yet approved and her H1B petition is filed while her H4 change of status is pending, she may be able to continue working once the H1B transfer is approved, even if the H4 petition is still pending.
EAD Card (I-765) Application:

The EAD application (I-765) could take 4-5 months to process. If your spouse does not find a job before the H4 EAD is approved, she would be allowed to work once the EAD is issued. However, the EAD would only allow work under H4 status, not under H1B status.
The EAD and H1B work authorization are separate processes. If she transitions to H4 status and gets the EAD, she could work on the EAD while her H1B transfer is processed.
Summary of Process if She Gets a Job in January:
If she is in H4 status at the time of job offer:

The employer would need to file an H1B transfer petition (I-129). She cannot start working until the petition is approved or she has a valid H1B status.
If she is still waiting for H4 approval at the time of job offer:

She may be eligible to start working under the H1B transfer petition once it is filed. If the petition is approved, she can resume working under H1B status even if her change of status to H4 is still pending.
If she has received an EAD under H4:

She can work under the H4 EAD if the H1B transfer petition is still pending.
In any case, it's critical to consult with an immigration attorney to guide the process and ensure that there are no issues with maintaining lawful status while switching between visa categories or applying for different work authorizations.
Best Regards