H1 B Consular Processing and H4 EAD

USA H1B Visa
1

I’m on L1A and my wife is working using L2 EAD. My H1B is picked up this year. I’ve filled for Consular Processing thinking that I will have enough time to plan for H4 EAD ( I have approved I140). I understand that in case of consular processing, I will have to visit to India (Consulate) in order to get the H1 activated. When Can I file for H4 EAD ? Can I file as soon as stamping is done in India or I can file only after entering in US. I’m trying to avoid the gap between L2 EAD and H4 EAD.

2

This is what you should do in my opinion - instead of going to India for stamping, apply for COS from L-1 to H-1 and L-2 to H-4 while continuing to stay within US. H-4 EAD can be applied concurrently with spouse’s H-4 petition.

Until H-4 is approved, spouse can work on L-2 EAD, and can work on H-4 EAD once latter is approved. Usually they approve both H-4 COS and H-4 EAD together when filed concurrently.

If you enter US on stamped H-1 visa, your spouse needs to file H-4 EAD immediately (as soon as you enter US on H-1) and then stop working until H-4 EAD has been approved. Once you lose your L-1 status, she needs to stop working on L-2 EAD.

3

Thanks for response Saurabh. Does this mean unless I enter back in US, my H1 will not be activated ? Or can I apply for H4-EAD as soon as stamping is done while I’m in India ?

4

Your H-1 is activated either by you entering US on H-1 visa, or your COS from L-1 to H-1 getting approved (which is what I recommended).

In case you want to get H-1 visa stamped and then return to US, then her H-4 EAD cannot be applied until you re-enter US. As she would need your H-1 I-94# which will be generated at PoE on your return.

5

Thanks Saurabh. Can a new employer file for COS without letting exiting employer know ? My current employer might not file for COS rather they might insist for stamping.

6

Yes, a new employer can file exempt petition along w/ COS for you. Current employer doesn’t need to be involved/informed about this.

7

Hi Pankaj,

I am in same situation. Can you please let me know how did you proceed the same.

Thanks