H1B to H4 COS and H4 COS to H1B Processing

[Sai Prasanna]

Hi,

I hope this message finds you well. My wife is on H1B and does not have an approved I-140. Her H1B term is valid until 2026. She has been affected by layoffs, and her 60-day grace period to find a new job has started. I have some questions for you:

1. Suppose she obtains an H4 COS visa stamp from India. After returning to the USA on H4 COS, can she initiate the process of changing her status from H4 COS to H1B through premium processing if she finds a job with a potential employer willing to file the H4 COS to H1B petition? Is this a valid case in accordance with USCIS immigration policies?
2. Or are there any USCIS rules that suggest we should wait until she obtains an H4 EAD before transferring from H4 COS to H1B?

Thank you for your time and consideration.

Best Regards, Sai

[Attorney_24]

Yes, when the wife is in the US in H4 status an employer can file an H-1B Petition for her requesting COS from H-4 to H-1B. Note - she can start work for the employer in H-1B status only after the approval of the H-1B Petition with the I-94. (and not after filing). She does not need the H4 EAD or wait for EAD in order to COS from H4 to H-1B.