Second COS to H1b out of cap premium while awaiting H1 to H4 EAD change of status

[scorpionZ9]

Hello Gurus,

Previously I was working on H1b with an approved I140. I lost my job due to Covid and immediately applied for COS to H4 because my H1b/I94 was expiring in 10 days. As of right now, my I94 is expired and I am waiting for the decision on my COS to H4. It looks like it will take another 6-7 months to receive a decision on that.

Based on this USCIS link I understand that any further COS application depends on the approval/rejection of the 1st COS application.

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3

I am trying to explore my options here to continue working. I need to wait for 6 months at least for H4 EAD. Can I get a prospective employer to apply for out of cap H1b and start working based on the receipt number? Is it even possible to file for Out of cap H1b while still in US awaiting decision on a change of status. As I understand it "out of cap applications", you need to be outside US and its part of consular processing.

Looking forward to your responses.

[rkk09]

Hi,
Can I get a prospective employer to apply for out of cap H1b and start working based on the receipt number?
Answer: No. You will need approval in order to start working on H1B. Why because, you have already one change of status petition pending. In order to do again COS, you will need an approval to start working on that.
Is it even possible to file for Out of cap H1b while still in US awaiting decision on a change of status?
Answer: Yes. But, We dont know, how USCIS will approve the case, whether change of status approval or consular processing approval.
Thanks