H4 & EAD Pending - COS to H1B

[BharatKalani]

Hi,

I am in a tricky situation and need help.

I am on H1B visa (797 & visa stamp on pspt) valid until 07/18/2021 with I-140 approved in EB2 and due to COVID have been laid off. My last date was 08/01/2020 and 60 day grace period ended on 09/30/2020.

I have filed for H4 EAD on 07/11/2020 in Texas Service Center and is currently both in pending status.

I have received offer and was looking for options to come back on H1B transfer using Premium processing.

Option1 – H4 COS to H1 with Premium processing

• Will it be possible to file this option in premium processing with H4 EAD in pending status ?
• Are their chances that H1B transfer application will get an RFE because H4 is in pending status?

Option2 – H1B transfer with Consular processing

• Will it be possible to file for H1B consular processing in Premium?
• Since I have H1B visa stamped and is valid until 07/18/2021 will it be possible to leave the US and go to Mexico and come back with new H1B visa or do I need to go back to India and get visa stamped with new H1B visa and then reenter US. Is there risk involved if go to Mexico for a single day and try to come back with new H1B?

Kindly note that we are planning to submit i485 in Oct 2020 with EAD and AP through my wife’s employer in EB3 category as well , so does leaving the country involve any issue to pending H4, EAD + i485, EAD & AP applications.

Thanks

[rkk09]

Hi,
Please see my response below.
Option1 – H4 COS to H1 with Premium processing

Will it be possible to file this option in premium processing with H4 EAD in pending status ?
Answer: Yes. This is possible.
Are their chances that H1B transfer application will get an RFE because H4 is in pending status?
Answer: Yes. There are high possibilities to get RFE to request maintenance of status proof during certain periods.

Option2 – H1B transfer with Consular processing

Will it be possible to file for H1B consular processing in Premium?
Answer: Yes. This is good idea and the petition must go this way to avoid issues.
Since I have H1B visa stamped and is valid until 07/18/2021 will it be possible to leave the US and go to Mexico and come back with new H1B visa or do I need to go back to India and get visa stamped with new H1B visa and then reenter US. Is there risk involved if go to Mexico for a single day and try to come back with new H1B?
Answer: if you request for consular processing or approved H1B petition with consular processing then you will need to attend visa Interview which consulate/ embassy they have mentioned in the approval notice.

So does leaving the country involve any issue to pending H4, EAD + i485, EAD & AP applications?
Answer: As long as you maintain Nonimmigrant status and have valid visa while you travel to the USA, your GC petition will not impact in any way. But, Once you get visa stamp on H1B, your H4 and H4 EAD petition will be void.
Thanks