H4 to H1 COS and travel

1

Urgent question:
I have an approved I140 from Employer A in India and my H1 extension got denied. I left to India immediately since my I94 had expired and came back to US on a stamped H4 which is valid for 2 more years.
I have an offer from Employer B who will apply for my out of cap COS from H4 to H1 based on my I140. Now, i have a planned travel to India coming up in 20 days.
A. If i leave the country while Employer B has applied for my COS in premium:

  1. if i get my H1 approved while still in India, can i come back on stamped H1 B for Employer B?
  2. If my H1 gets denied, can i still come back on my stamped H4?
  3. if my H1 approval gets approved but due to some reason the stamping of H1 gets denied can i come back on my stamped H4?
  4. will my travel during pending COS decision impact anything as long as i come back on stamped H1?
    B. if my H4 to H1 COS goes into RFE and takes a couple of months to get a decision, can i travel back to US on my stamped H4 and wait in US for the decision of COS or will travel back be an issue ?

Thank you so much in advance

2
  • if i get my H1 approved while still in India, can i come back on stamped H1 B for Employer B?
    YES
  • If my H1 gets denied, can i still come back on my stamped H4?
    YES
  • if my H1 approval gets approved but due to some reason the stamping of H1 gets denied can i come back on my stamped H4?
    YES
  • will my travel during pending COS decision impact anything as long as i come back on stamped H1?
    YES, This should be your very first question.
    COS: Change of Status.
    Status exists only while you are on US soil. Once you left US, there is no Status thus, there is nothing called Change of Status. Thus, your H4 to H1 COS can be rejected point blank.
    B. if my H4 to H1 COS goes into RFE and takes a couple of months to get a decision, can i travel back to US on my stamped H4 and wait in US for the decision of COS or will travel back be an issue ?
    Your travel leaving US itself is an issue there. Any other RFE may be addressed but not COS out of US.
3

Hi ImmiGeek ,
Thank you so much for your response. A few clarifications

  1. If i decide to stay in US on my H4(being valid for another 2 years), do i need to travel outside the country and get a stamping to begin work once my COS from H4 to H1 is approved ?

  2. If i decide to travel to India now and return on Jan 20th . Meanwhile, if new employer applies for COS with a date post my return date(eg Jan 25th) , can i travel back to US on Jan 20 on my stamped H4 irrespective of Approval/denial/rfe.

  3. If my new employer applies for H1 once i travel to India (assuming it is no longer a COS application- pls correct if it is an incorrect assumption) can i travel back to US on Jan 20th on my H4 if my H1 application is in RFE /pending status at that point?

  4. If answer to question #3 is no, what are my options to abandon this H1 application and come back ? The reason is i do not want myself and my child to be away from my husband for more than a couple of months and want to come back on H4 in worst case scenario.