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H4 to H1 COS pending and spouse H1 expire soon

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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.


asked Mar 15 in H1B Visa by kanchen (220 points)

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