H1 approved prior to H4 approval - COS ? Withdraw Options ? Child H4?

USA H1B Visa
1

I am on H1b visa.

H1b/ H4(for my spouse and daughter)/H4 Ead(spouse) applied on May 28th 2019 in premium
H1b approved within a Week
The H4 ead was valid till Aug 31st 2019 and was working
My spouse company applied H1 for her.
Took unpaid leave from sep 1st.

H1b got approved for my spouse.
Now when H4/ H4 ead gets approved , will it override the H1b which got approved for her prior to that?
if so what are the options

  1. We cannot withdraw the H4 as it is for my spouse and daughter and so daughter will go out of status. As the I-94 got expired on aug 31st we cannot re-apply the h4 for my daughter alone.

  2. it is very difficult for me to make a international travel at this time and get my visa and my daughter H4 stamped.

3)Can my spouse employer( who had filed the H1) wait for the h4/ h4 ead to come and then once we get it, apply for COS back to h1?
This way my daughter could not have any issues.
The only drawback with this approach is if the H4 Ead do not come along with H4, then my spouse could not work again until the COS is approved.

Please let me know if we have some other option ?

2

USCIS goes by the last action rule, meaning what comes last becomes the valid one…So, if your spouse gets her H4, her status would again change back to H4…As you described, it is very tricky with timing related to your daughter H4 status…

Looking at the overall situation, the best thing to avoid all complications would be to get your daughter out and get her stamping…alternatively, again re-apply for COS after they get H4.

The timings are critical for all of these and you need to really discuss with your attorney. I suggest you talk to your spouse’s H1B attorney and then take a course of action based on their advice…Sometimes, you may need to change your plans to make immigration work for you smoothly, so you may have to leave and re-enter to avoid future issues… Talk to your attorney.

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