Travel on H4 while H1 is pending

[slopeofhope]

I’m on H4 status. Applied for H1B in Aug11 with COS application to change my status from H4 to H1 upon H1 approval. Recently I have received a RFE with time until Jan30 to respond. Now I had to travel to India because of emergency. Talking my Attorney and browsing some forums I understand that my COS application is void now as I left U.S while my H1 application is pending.

If my H1 is approved while I’m in India I know that I have to go to visa stamping which I hate because of fear of rejection. Alternatively, can I come to U.S on H4 and apply a new COS application to change status from H4 to H1? This way I can avoid going for visa stamping for now, Am I introducing more risk or scrutiny this way?

Can I come to U.S while H1 is pending and apply new COS?

Thanks in advance for the help.

[Attorney_10]

Generally, if a nonimmigrant travels abroad while a change of status application is pending the application is abandoned. However, the H1B petition may still be approved for consular processing. In order to change status from H-4 to H-1B in the U.S. one would need to file a new I-129 petition with request to change status. Please schedule a consultation with a qualified immigration attorney to discuss the specific issues with your case and the different options that may be available to you.