H4 to H1 COS pending and spouse H1 expire soon

Hi Saurabh,

I have recently travelled to US on H4. I was working here in US previously on H1, I went to India a few months back when I was on H1B and my I797 was pending for decision then and since it was taking time for my I797 approval and since I was not having H1 Visa, I thought not to take risk so I got my H4 stamped and travelled back to US on H4 as my spouse is already here. Now I am planning to file for my COS from H4 to H1, I have the following queries and need your help:

  1. Can I use the same petition form my employer that was still pending for decision when I was working for him or do I need to ask my employer to file for a new petition?

  2. If I can use the old petition then can I start working on it if it gets approved with a new i94 or do I need to file for COS from H4 to H1 after the old petition is approved and then start working only after my COS is approved?

  3. Also my H4 Visa and the current I-94 is valid only for 4 months as my spouse H1B visa is expiring in 4 months and also there is no extension possible as the whole of 6 Years is consumed for my Spouse H1 Period so in this context if my COS or petition is in process and if the decision is not made before 4 months then can I continue here in US till the decision is made ( i.e. even after my current 1-94 expiration) ? or Do I need to leave US when my I-94 expires even if my COS is pending for approval?

  4. I know that COS gets abandoned if I leave US before approval so little curios on what would happen in the above case (3)?

Thanks for all your support and all your valuable suggestions saurabh, I will be waiting for your reply.



Hi Saurabh,

Request to give me your advice on my above questions.


  1. I assume the old petition is still pending w/ USCIS. If it gets approved, then you can use that petition to work. Unfortunately, it would be processed without COS as you left US while it was pending. So a separate COS application is needed.

  2. Your current status has become H-4 and you cannot start to work on H-1 until your COS to H-1 has been approved.

  3. If a new COS is applied then you can continue to stay beyond I-94 expiration date. Your old H-1 petition doesn’t extend your status as you left US while it was pending. So a new COS application would be needed to extend the status and continue to stay in US.

Although its too late now, but why didn’t you upgrade to PP? Also, what’s your spouse’s plan to continue to stay in US beyond his 6th year?

Thanks a lot Saurabh for all your suggestions.

Actually my wife is now on H1 and her employer is not filing her green card and she unfortunately did not get any employer till now who can file her GC and I think it’s late now for her to start her GC so she is planning to leave US in 4 months and she will come back to US on H4 after my H1 Cos approval.

Yes Saurabh , my petition is pending and It was my mistake to not get my H1 petition upgraded to premium and as you said it’s too late now.
So can I I file my COS now or do I need to wait for my approved petition?
Suppose my Petition gets approved in a month from now and if I file for my COS then and since there is every chance of my COS getting approved only after 4-6 months from there and by that time my H4 would have expired and my wife would have returned to India so can I continue here in US even after my H4 ( i94) expiry as my COS would be pending then?

Just checking if a person can stay beyond his H4 i94 if the COS to H1 decision is pending by then?

Thanks again for all you help.


COS cannot be applied until H-1 petition is approved first.

If your H-1 or COS is still pending and your wife leaves US for good, then you should leave US as well. USCIS would know from their system that primary H-1 holder has exhausted her H-1 and has left US.

Did you evaluate the option of getting H-1 and H-4 visa stamped (instead of your H-1 COS) and then returning to US?

Thanks for your reply Saurabh.

So I will file my COS after my petition is approved and will leave US and will try to get my H1 stamped if my COS is not approved before my H4 expiry.

Thanks again for all your help. Will get back to you for another queries about this.


Yes, that sounds like a plan. Keep your employer updated with the progress.