H1 to H4

[Allstar11]

Hello, I have a few questions regarding my H1 extension and H4 processing. Please assist me.

My H1B petition expired in July 2023, along with my I-94. I have applied for an H1B extension, which has been pending with USCIS for over four months. However, my project at my current employer has concluded, and I have been asked to return to India. FYI: My wife is in H1B with approved i140. Both my H1B and H4 applications will be filed by the same employer, as my wife is also employed by that company. Assuming that my employer is not going to revoke my H1B petition, I am seeking to remain in the US by applying for an H4 visa.

1. With my H1B extension pending for approval, am I eligible to apply for an H4 Change of Status (COS) and remain in the United States?

2. If my (Same for my spouse) employer file for an H4 Change of Status (COS) tomorrow, will it be effective and allow me to remain in the US, regardless of my I-94 status?

3. If my H1B gets approved in the meantime, can I withdraw my H4 application?

4. If the same employer files for H4, can USCIS reject my H1 extension? 

[Attorney_24]

While on H-1B the foreign national should be working and getting paid. If your project has ended and you have been asked to leave then it appears that you may be out of status and may not be eligible to apply for change of status in the U.S. 

Generally,  if a change of status case to H4 is filed when an H-1B extension is already pending the decision of the  H-1B case will have direct implications on the  H4 case. For case specific advise do schedule a consultation with one of our attorneys.