F1 to H4 EAD Transition

USA H4 Visa
#1

My wife is currently on F1 OPT which expires in Feb 2023 and was not picked up in her last H1 attempt this year. Even though we are aware that there might be multiple H1 lottery rounds, we don’t want to risk waiting longer to start the H4 transition process owing to the long transition times for a change of status and EAD card. Can someone help answer a few questions?

  1. What is the best strategy we can take given we have about 10 months till the end of OPT?

Scenario 1: We apply for a change of status immediately and file for EAD concurrently. Do we risk the case where the COS happens first and EAD arrives later? In such a case she might have to take a gap from her work.
Scenario 2: Can we apply for COS and EAD concurrently with Feb 2023 as the effective start date in the future? The lawyers mentioned that we can only set a future reference date 180 days from the date you file.
Scenario 3: We apply in August (Feb 2023 - 180 days) to send concurrent applications for COS and EAD. We get lucky if both are approved together but risk running into a gap in employment if the COS happens first and we don’t receive the EAD card. In that case, we might have to move to a remote country and wait for the EAD to avoid gaps in employment.

  1. When the COS and EAD application are filed concurrently, are they always approved together or there is a gap in getting both approved? If there is a gap, is there an average timeline for that?

  2. While the whole transition stuff is in play, at what point (if any) can I switch jobs?

Thanks in advance! Appreciate any help.

#2

In any of the above cases, there is a chance that H4 is approved first or with start date of Feb 2023 however EAD may not be approved at the same time.
I think the best approach will be to apply in August with a start date of Feb 2023. That way your spouse can keep working till the OPT expires and if the H4/EAD is not approved by that time, she will need to take a break at work and resume once her H4/EAD is approved.
Note that if your spouse leave the country for working remotely, her change of status application will be considered abandoned and may be denied which will also result in denial of her EAD application. In such situation she will need to apply for H4 visa and once approved, travel to the US and then file EAD which might take several months for approval.

There is no math around this. It could be few days to few months.

You can switch jobs any time, no issue.

#3

Thank you @Kalpesh_Dalwadi for the reply. Given your answers above, the current timeline of getting H4 EAD and my wife not being able to leave the country, there is no way to avoid the employment gap?

I have read about several cases that people work from Canada up until their EAD card is not processed by getting a work visa there.

#4

Not unless you get lucky and both are approved at the same time before the OPT expires.

Not unless the EAD employer has a branch in Canada and they are ready to sponsor work visa.