H4 to H1B COS wish to retain H4 status

[MJ7]

My ex-employer has filed a H4 to H1B COS Premium Processing and the result might be out by next week or so....but I no longer wish to work for them.

If my COS is approved can I continue staying on my existing H4 until October 2010 after which i plan to visit India and come back on the H4?

Basically want to know if I can avoid the process to COS from H1B to H4 and just get a new H4 stamp in India in October.

Appreciate your response.

[shervin143]

Since this isn't a new H1B, your status will change to H1B when the COS gets approved. Once you are in H1B, you need to be working and get paid to maintain your H1b status. You will either need to leave the country immediately and return back in H4 visa to get back to H4 status or you should file a COS back to H4 immediately.

Alternatively, you can ask your employer to revoke the H1B COS before it gets processed.

[MJ7]

Thank you Shervin, one last question..
if the COS to H1B gets approved you mentioned one way to get back on an h4 is to leave the country and re-renter on the h4...can I possibly do that by going to Canada? Ideally I would do it from India but at this point Canada might be a better option.

Do you think it might not be a complex case as I was alloted an H4 before....
(when I had applied for an H4 at the Delhi Consulate they had accidently given me an H1B visa instead of an H4) Right now my H4 visa has a CWOP stamp on it....So if possible I could go to Canada and request them to allot a fresh H4 stamp?

I apologize for the chaos, I really do.

[shervin143]

if the COS to H1B gets approved you mentioned one way to get back on an h4 is to leave the country and re-renter on the h4...can I possibly do that by going to Canada? Ideally I would do it from India but at this point Canada might be a better option.
>>> Possible. However, if your stay in Canada is very short, then they won't take your current I-94 when you leave the country. They will ask you the use the same one upon return (Which will keep you in H1b status). In order for you to return back to H4, you will have to return all your I-94's when you leave the country and get a new I-94 by returning back on H4 visa.

Do you think it might not be a complex case as I was alloted an H4 before....
(when I had applied for an H4 at the Delhi Consulate they had accidently given me an H1B visa instead of an H4) Right now my H4 visa has a CWOP stamp on it....So if possible I could go to Canada and request them to allot a fresh H4 stamp?
>>> I am not clear. If that was the case, why didn't you get it corrected before? Anyhow, for you to return back in H4 status, you need a valid H4 visa. Otherwise you will need to get H4 stamped in Canada before you return back.

[MJ7]

Would it help if i leave the country and go to Canada before my approval ....would that void the COS...and help me retain my H4 Visa?

[shervin143]

That is hard to predict. Technically, if you leave the country when a COS is pending, the COS should get denied. However, there are chances that the COS gets approved. Your trip would mean nothing if that happens.

Would it help if i leave the country and go to Canada before my approval ....would that void the COS...and help me retain my H4 Visa?

[kabkaba]

What does your latest I-94 say? H4 or H1? How did you come to US in H4 status if your H4 visa was canceled?

[MJ7]

The Delhi Consulate issued an H1B where I had applied for an H4..I got the visa a day prior to my flight and at the port of entry the immigration officer stamped H4 on my I94 and advised me to get a fresh H4 when I travel back to India next as this was not my mistake.

I am trying to find out if I could do that at Canada?

[shervin143]

You are lucky that the officer at POE allowed you to enter U.S in H4 status even though what you had in your passport was H1B. If a mistake was made on the stamping, then it can be corrected only from the same consulate. If you are going to travel to Canada, then you will need to get the H4 stamped to re-enter.