conflict between COS and H1B petitions

[Raahi]

I'm on H1B with a dependent who's on H4 and I'm planning to resign from my current job. I'll apply for a Change of Status (COS) to B1/B2 on the last day of my current job and continue to give job interviews. When my new employer files a petition for the H1B transfer, USCIS will have two petitions under my name, COS and the transfer petitions. Will it, therefore, mean that I'll have to travel to our home country at some point to get a new stamping? If yes, will my dependent also have to travel with me? Along with H4 my dependent also has a valid B1/B2 visa, will that make any difference? Please advise.

[raghvi]

I'm on H1B with a dependent who's on H4 and I'm planning to resign from my current job. I'll apply for a Change of Status (COS) to B1/B2 on the last day of my current job and continue to give job interviews. When my new employer files a petition for the H1B transfer, USCIS will have two petitions under my name, COS and the transfer petitions. Will it, therefore, mean that I'll have to travel to our home country at some point to get a new stamping? If yes, will my dependent also have to travel with me? Along with H4 my dependent also has a valid B1/B2 visa, will that make any difference? Please advise.

Why you cannot wait till the h1 porting to another employer is approved before resigning from your current employer?

Prior to your resignation, you would have to apply a H1 to B2 COS, and also a H4 to B2 COS for your spouse, as without you being on H1 the dependents also cease to be on H4. Its never advisabel to have multiple petition/COS requests pending with USCIS as it can give rise to complications.

Now, the biggest concern with this approach is a COS to B2 is generally not regarded very positively by USCIS, and denial rates are high. At the same time, a COS to B2 can take upto 3-4 Months for a decision and there is no premium processing for the same. During this time frame , as you right pointed out, if you find a new job, then the new employer would initiate a H1 petition for you. Even if you file the H1 as premium, USCIS, will most likely issue an RFE asking you to first prove that you are in valid status in US at that time, you would be able to prove that only if your COS to B2 was approved which might not be the case. USCIS also doesnt very much like a COS from B2 to H1. As a result USCIS would either deny your H1 or approve it as consular processing hence would require you to leave US and re enter with a fresh H1 stamping in order to work on H1.

Also, you would have to file a COS from B2 back to H4 for your dependent too once your H1 is approved, if it is. A larger complication can happen if your H1 to B2 COS gets approved after your H1 gets approved, and you would move back to B2 similar for your spouse .

All the above a COS from H1 to B2, H4 to B2, B2 to H1, B2 to H4 has legal costs associated with them. Its advisable to move to new employer only after H1 porting has been approved, or to travel out of US and re enter on fresh H1 petition/stamping.

This is my opinion not legal advice.