H1B to H4 to H1B (with I140 Approved)

[Avvichand]

My wife is on H1B visa (7th year) and has I140 approved before her 5th year of H1B. She got laid off yesterday from work and her termination date is Dec 2017. She has 60 days of grace period (on H1B) after that, (which is Feb 2018) to find a job so she can transfer her H1b visa.

I am on H1b visa (7th year) and have I140 approved.

My questions below:

1. Say if she doesnt find a job by Feb 2018, i am planning to move her under me; i.e. as H4 under my H1b. And now say she finds a job around May 2018 and if the new employer is willing to sponsor her H1B, then what do they need to apply ? Is it called H1B transfer or Change of Status (from H4 to H1B) ?

2. Will the H1B counted towards the cap? Or since she was already counted towards the H1B cap and has I140 approved, she will not be counted towards the cap?

3. If the new employer asks  if she has a work permit, what should she say? 

4. Also, can she start working under H4 EAD (assume she has it approved) from May 2018 with the new employer ? So, in the mean time, the new employer can apply for her H1B ?

5. What will be the status of her H1B during the interim period between Feb 2018 and May 2018? Is it still with the old employer who laid her off?

[directory0818]

1. Say if she doesnt find a job by Feb 2018, i am planning to move her under me; i.e. as H4 under my H1b. And now say she finds a job around May 2018 and if the new employer is willing to sponsor her H1B, then what do they need to apply ? Is it called H1B transfer or Change of Status (from H4 to H1B) ? -> If H4 is approved by Feb 2018 then you need to apply change of status from h4 to h1b in May 2018.

2. Will the H1B counted towards the cap? Or since she was already counted towards the H1B cap and has I140 approved, she will not be counted towards the cap? -> She would not be counted towards the cap.

3. If the new employer asks  if she has a work permit, what should she say? -> If you plan to apply h4-ead then wait until ead approval and inform the prospective employer.

4. Also, can she start working under H4 EAD (assume she has it approved) from May 2018 with the new employer ? So, in the mean time, the new employer can apply for her H1B ? -> If she is already working on h4-ead, why would you need h1b transfer again?

5. What will be the status of her H1B during the interim period between Feb 2018 and May 2018? Is it still with the old employer who laid her off? -> As you are planning to apply h4-ead by Feb 2018, h1 is void.

[Avvichand]

Hi directory0818,

Thanks for all your detailed replies. For the Q no 4, i need little more clarification:

<YOUR_REPLY>: If she is already working on h4-ead, why would you need h1b transfer again?

<MY ANSWER>: I am planning to avoid applying H4-EAD as much as possible unless there is a pressing need. Reasons are:

1. I feel H4-EAD is still getting debated to be suspended or removed in the near future. That might not happen, but my point here is there is lot of ambiguity surrounding H4-EAD than it is on H1B. So, i am thinking of waiting for getting a job and make the new employer apply for change of status from H4 to H1B. What are your thoughts?

2. H4-EAD and H1b application in parallel - Assume she gets her H4 in Feb 2018 and apply for H4-EAD in Feb 2018 (since it takes around 90 days to get the EAD approval), assume she finds a job around April 2018; how will it play out if the employer is applying for H1B Change of Status (COS) while H4-EAD is getting processed ? Or just wait until H4-EAD is approved and join new employer ?

3. Traveling outside the country while H4-EAD application is pending - Is it possible ?

4. H1B is an independent process for my wife rather than H4-EAD (which depends on my job); If i lose my job, she will be affected too. For that reason, i want her to switch to H1B (since she has the option) with the new employer even though she can work in H4-EAD. Assume she joins the new employer on H4-EAD, can we request the new employer to apply for COS (from H4 to H1) while she is working ?

5. H4-EAD cant work with a receipt number (there is no concept of receipt number on EAD), whereas H1B sponsored from employer can start working with a receipt number (if employer is ok) ?

[JoeF]

She can only start working with the H1 receipt number if she is in valid H1 status. If it is a COS from H4 to H1, she has to wait for H1 approval.

[Avvichand]

Thanks @JoeF. Is it possible to answer my other queries as well?

[directory0818]

8 hours ago, Avvichand said:

Hi directory0818,

Thanks for all your detailed replies. For the Q no 4, i need little more clarification:

<YOUR_REPLY>: If she is already working on h4-ead, why would you need h1b transfer again?

<MY ANSWER>: I am planning to avoid applying H4-EAD as much as possible unless there is a pressing need. Reasons are:

1. I feel H4-EAD is still getting debated to be suspended or removed in the near future. That might not happen, but my point here is there is lot of ambiguity surrounding H4-EAD than it is on H1B. So, i am thinking of waiting for getting a job and make the new employer apply for change of status from H4 to H1B. What are your thoughts? -> H1 to H4 and back to h1 can take min 3-4 months. All timelines must be discussed with the new employer.

2. H4-EAD and H1b application in parallel - Assume she gets her H4 in Feb 2018 and apply for H4-EAD in Feb 2018 (since it takes around 90 days to get the EAD approval), assume she finds a job around April 2018; how will it play out if the employer is applying for H1B Change of Status (COS) while H4-EAD is getting processed ? Or just wait until H4-EAD is approved and join new employer ? -> Ead approval sometimes takes 120 days based on the processing center timelines. So plan accordingly.

3. Traveling outside the country while H4-EAD application is pending - Is it possible ? -> You need to be in usa to get ead fingerprints done.

4. H1B is an independent process for my wife rather than H4-EAD (which depends on my job); If i lose my job, she will be affected too. For that reason, i want her to switch to H1B (since she has the option) with the new employer even though she can work in H4-EAD. Assume she joins the new employer on H4-EAD, can we request the new employer to apply for COS (from H4 to H1) while she is working ? -> Yes its possible to apply cos from H4 to H1 while spouse is working on H4-ead.

5. H4-EAD cant work with a receipt number (there is no concept of receipt number on EAD), whereas H1B sponsored from employer can start working with a receipt number (if employer is ok) ? -> Since your spouse is already on h1, she could start work on h1b receipt notice.

 

[Avvichand]

Thanks @directory0818 for all the replies.