H1 visa while in H4

[piya]

My husband was working in US in his L1B visa. Since he got an RFE when applied for L1B extension, he initiated a change of status to H4 as my dependent by filing a I539. He requested his employer's law firm to submit a withdrawal for his L1B extension. The H4 status is in "Initial review". Meanwhile his employer has initiated filing a fresh H1B for him.

If his H1B petition is approved does he have to go back to India and get a stamping for his new H1B or he can start working on his H1B once its approved.

Please advise what action needs to be done on the current H4 change of status petition once he gets his H1B.

Thanks in advance

[shervin143]

If the H1B is approved as a COS (The approval should come with a new I-94 attached to it), then he can start working without having to leave U.S. If not, then he should leave the country and return back with a valid H1B visa and the approved H1B petition.

If the H4 COS gets approved after the H1B approval, then as per the last action rule, his status will change to H4 and he cannot work when he is in H4 status. In such case, to work in H1B status, he has to leave the return back in H1B visa as mentioned above. Search and read about the last action rule.

[piya]

Thanks for the information. Please help me understand what H1 approved as COS means. Do we need to notify the employer's attorney that my husband is currently in US in H4 status and while filing the H1B petition, they should file in a different category. Please advise.

Also, is there an option to withdraw the H4 petition as soon as the H1B (as COS) is approved?

[shervin143]

COS means change of status. That is what you would have done earlier when you filed the COS from H1B to H4. There should be an I-94 attached to the H4 approval notice. Without that you cannot claim that your husband is in H4 status. Similarly, the employer should file the COS from H4 to H1B using the copy of the existing H4 approval notice. Just check with the employer to make sure that the H1B is filed as a COS and not for consular process. If the H1B is approved for consular process (approval without a new I-94) and then the person need to leave the country and return back in H1B visa to get an I-94 associated with the H1B status to start working.

You can send a letter to USCIS requesting them to stop processing the H4 petition. But it depends on whether the application has been already taken for processing or not. It is not guaranteed that the I-539 will be stopped from getting processed.

Thanks for the information. Please help me understand what H1 approved as COS means. Do we need to notify the employer's attorney that my husband is currently in US in H4 status and while filing the H1B petition, they should file in a different category. Please advise.

Also, is there an option to withdraw the H4 petition as soon as the H1B (as COS) is approved?