when should I apply for COS H4 to H1 - H1B approved thru consular processing

[aruk]

Hi All, need your help/advise on my situation.
I am on H4 visa since October 2013, this year 2015, I applied for H1B through a consultant and got approved in July 2015. However I traveled to India in March and returned in April 2015, hence my consultant processed my H1B thru consular processing.
My consultant says its not mandate to apply for my COS before October 1st. I can apply for COS later even after few months when I am ready to start on job.Since My H1B was thru consular processing , I can start my job later (example: Jan/Feb 2016) without the fear of loosing my H1B.

Is my consultant correct?
Can I still hold on to my H4 status even after October 1st?
Is there a time limit to this?
Will the simple COS amendment suffice for my situation (since my H1B was through consular processing)?

Appreciate your responses!!!

[kabkaba]

Yes, that's right. You can change your status whenever you and your employer are ready. You cannot begin working before change of status gets approved and once approved you must begin working.

[m2shines]

Yes, that's right. You can change your status whenever you and your employer are ready. You cannot begin working before change of status gets approved and once approved you must begin working.

My wife also applied through consultant and travelled to India and returned in May 2015. We have got receipt # but the status is still showing as application in process. So does that mean that once the visa status changes to approved.. we have to again wait for 2 months for COS. And she cant work until COS is approved. Its really not in our hand to delay COS?

The usual processing time for H1 petition as per USCIS website for EAC is 2 months but it has already been 4 months now.

Can someone clarify my questions and provide some information about delays this year.

[shervin143]

Since your wife left U.S while the H1B petition was pending with USCIS, it is possible that H1B might get approved for consular process with COS being denied. If approved for consular process, she cannot begin working for the H1B sponsor until a COS is filed from H4 to H1B again (amendment to the approved H1B petition) and that gets approved or she will need to leave the country and return back on H1B visa. The COS can be filed anytime with an effective date of Oct 1st or later.

My wife also applied through consultant and travelled to India and returned in May 2015. We have got receipt # but the status is still showing as application in process. So does that mean that once the visa status changes to approved.. we have to again wait for 2 months for COS. And she cant work until COS is approved. Its really not in our hand to delay COS?

The usual processing time for H1 petition as per USCIS website for EAC is 2 months but it has already been 4 months now.

Can someone clarify my questions and provide some information about delays this year.

[kabkaba]

It may get approved with change of status, if requested.

[m2shines]

It may get approved with change of status, if requested.

Thanks for your inputs.
As per my discussion with consultant - I was told that there are 50% chances that it may get approved with COS. However there is very slight chance of denial due to her being out of country during processing.
In case COS is denied - the 2 options I have is to either apply for COS amendment or go out of US and get visa stamped through consular service.

Am I correct here? or is there high chance of denial of H1B? What will be options then?

Thanks again.

[kabkaba]

That's correct.

There is no reason for denial of the petition itself because of any reasons mentioned.

[aruk]

Thank You, Appreciate your response

[aruk]

H1B approved thru consular processing. Can I start working with H4 to H1 COS Receipt?

Hi All, Thanks for your advise on my situation. need further clarification.Please advise.

My H1B approved thru consular processing.(Now i am on H4) I am planning to apply for h4 to h1 COS in october/november.
does COS take long time? Can I start working with H4 to H1 COS Receipt? Or should i wait for COS Approval to start working?

Appreciate your responses!!!

[shervin143]

You cannot work on the receipt notice. Unless your COS gets approved, you are not in H1B status, so you should not work. It take anywhere between 2-5 months to get the COS approved if filed in normal process. There is a premium process that will get you the result within 15 days.

Hi All, Thanks for your advise on my situation. need further clarification.Please advise.

My H1B approved thru consular processing.(Now i am on H4) I am planning to apply for h4 to h1 COS in october/november.
does COS take long time? Can I start working with H4 to H1 COS Receipt? Or should i wait for COS Approval to start working?

Appreciate your responses!!!

[skanthp]

You cannot work on the receipt notice. Unless your COS gets approved, you are not in H1B status, so you should not work. It take anywhere between 2-5 months to get the COS approved if filed in normal process. There is a premium process that will get you the result within 15 days.

Hello All,
We are also in the same sutuation....

We applied H1 visa for my wife and it was picked in the lottery. When I applied for H1B/H4 extension, H4 got denied because I got 797B (without I-94). We left the country immediately and came back with valid stamping. H1/H4 validity till 05/26/2016. Mean while she got RFE (H1B) for valid I-94. Responded to RFE once we are back to US.
The latest update is H1B petition got approved for 2 years but COS is denied. She got I-797B.
COS denied reason- “Because the beneficiary departed the US while the change of status was pending, the beneficiary is considered to have abandoned the request for a COS. The beneficiary’s subsequent return to the US does not negate the abundant of status. This decision may not be appealed. If you disagree with this decision, or if you have additional evidence that shows this decision is incorrect, you may submit a motion to reopen or a motion to reconsider by completing a Form I-290B.”
Now here are my questions.
1. As per my knowledge she is legal to stay on or before her H4 expire. Correct me if I am wrong!!
2. What is the best option for her Stamping in India (or) MTR?
3. What are all the chances and timeline for MTR?
4. What are all the possibilities for stamping?
5. How about H4 to H1 COS again in premium process?
Thanks in advance for your response.