Continuing work when converting from H1B to H4 in USA

[Dinesh Balegar]

I am currently on H1B with max out date of 3/3/2023. My PERM was filed on 4/8/2022 and it has been selected for audit on 12/15/2022.

Attorney is going to submit audit response by first week of Jan 2023. Considering the current perm audit processing timelines, I expect a decision to be made on my PERM application not until mid-April 2023, which would be beyond my H1B max out date.

I cannot get 1 year extension, as my PERM was not filed 1 year before my H1B max out date and I do not have approved I140 from previous employers.

I am trying to find options which will help me to stay and work in USA.

Scenario 1: My wife has approved I140 from her employer. Let's say I apply my COS from H1B to H4 + H4 EAD on 12/19/2022 with an effective date of 02/15/2023 –

Question 1.1: Assuming COS gets approved on 2/28/2023 (before max out), then will the work duration from 12/19/2022 to 2/15/2023 count against H1B and from 2/15/2023 to 2/28/2023 H4?

Question 1.2: Assuming COS gets approved on 03/23/2023 (which is after my H1B max out date) can I continue to work beyond my max out date or stop working from max out date. Also, if I stop work on my H1 max out date, will I be consuming my 6 years of H1B and not eligible for further extensions (once I get I140 approved)?

Question 2: Go back to India in last week of December, get my H4 stamped come back on H4 and apply H4 EAD. Can we work on H4 EAD receipt and with earlier H4 EAD card which expired on 12/31/2021

[JoeF]

You can not work past the H1 max out, even if the H4 is still pending. Period.

Edited December 21, 2022 by JoeF