L1 to H4 to H1

[jhansisri]

Hi,

Can someone please help me with my scenario below.

 

 

 I came to US on Feb 2014 on L1 and applied for H1B with COS in April-2014 and it got approved with COS.my L1 I94 is valid upto October 2016,but as current project with my L1 employer got over on July 16th , i applied for h4  and just received receipt no.I see processing time for change of status as 2.5 months in USCIS website.Could you please answer for below.

 

 

1.If my H4 got approved before October 1st then do i need to do COS from H4 to H1 to start working ?or my COS applied in april will be considered from h4 to h1 or according to last action rule which is effective date of start of H1,i can start work from October 1st without any doing any COS from H4 to H1

 

 

 

2.If my H4 got approved after october 1st,then from October 1st till h4 approved date(assuming h4 approval will take time),

can i work?

 

[jairichi]

1. Yes, you can start working from 1st Oct.

2. If COS to H4 gets approved after 1st Oct then you have to stop working for H1B employer and exit and enter US with a valid HB visa and I797 to continue working.

[jhansisri]

Hi Jairichi,

For same questions i am getting conflicting answers.Could you please clarify which one is correct.It will help a lot to take decision for me.

 

 

QUESITON 1: If my H4 got approved before October 1st then do i need to do COS from H4 to H1 to start working ?or my COS applied in April will be considered from h4 to h1 or according to last action rule which is effective date of start of H1,i can start work from October 1st without any doing any COS from H4 to H1

ANSWER: This is all part of the last action rule. The last action can be USCIS action or effective dates. That is why you are confused. Again, it depends. If the H4 is approved and effective ONLY UNTIL September 30, 2014, then you do not have to do a change of status to H1B on October 1. You go to H1B automatically. 

But if there is no answer on your H4 by October 1 or the answer approval but validity expires after October 1, 2014, then the last action is the filing of the H4 and the validity of the H4 past October 1, 2014, and in that case you have to file the H1B COS. 

QUESTION 2: If my H4 got approved after October 1st,then from October 1st till h4 approved date(assuming h4 approval will take time),can i work?

ANSWER:I answered this already. You are not in lawful status from April to October 1, 2014, because a processing H4 application is not a status that allows you to bridge to H1B in October. So if the H4 is approved after October 1, then you cannot start working on H1B until then, and ONLY if the approval of H4 was until September 30, 2014. 

So the bottom line is, in order to work on October 1, 2014 in all cases, you only have two options: 

1) You need to either leave the US and return no earlier than 10 days before October 1, 2014 with an H1B visa; OR

2) The H4 has to be approved and the validity date has to be only until September 30, 2014. 

If the H4 is not approved by October 1, 2014, you cannot work on H1B because you have no valid status from which to change to H1B. If the H4 is approved before October 1, 2014, and is valid after October 1, 2014, then you need to apply for a COS to H1B. If the H4 is approved before October 1, 2014, and the validity is only until September 30, 2014, then you will automatically change to H1B without filing an H1B COS. 

Again, the last action rule can be the last action on the I-94 (validity dates) or the last action of the USCIS or applicant filing. 

[jairichi]

My suggestion and simple solution is once you get your H1B approved just exit and enter with a valid H1B visa and I797. Doing so will cancel your COS to H4 petition.

[ritsvj26]

can't  he withdraw H4 on 1 oct if it is still in process?  if yes, then what will be his status  for that duration?

[jairichi]

can't  he withdraw H4 on 1 oct if it is still in process?  if yes, then what will be his status  for that duration?

He can request for withdrawal of H4 petition. Most of the time USCIS processes the petition.

[jhansisri]

Hi Jairichi,

do you think by withdrawing COS request from L1 to h4 is going to built as bridge for 2 months?

then what will happen to my status during this perios from July 19th 2014 to Sep 30th 2014?

[jairichi]

Hi Jairichi,

do you think by withdrawing COS request from L1 to h4 is going to built as bridge for 2 months?

then what will happen to my status during this perios from July 19th 2014 to Sep 30th 2014?

Withdraw it immediately after 1st Oct. If successful then nothing to worry.

Having a receipt notice for COS from L1 to H4 and withdrawal documents will be proof enough to show that you are in status from July 19th to Sep 30th.

[itsmeusa]

You must seek legal advice.