H1-H4-H1 - COS to H1 based on the pending H4 application?

Hi everyone,

I’ve tried searching for prior information on this topic but I found it hard to understand the details.


  • I was laid off during the 1st week of November, while working on H1-B.
  • Applied for H4 COS + EAD with my spouse’s employer during the last week of November. This application is pending a decision.
  • Spouse’s H1-B is expiring in August 2019, so their employer is currently preparing to file for their H1-B extension, along with my H4 + EAD application.


  • I’ve been interviewing for various jobs. In the event I’m offered a position, what are the complications involved in applying for a COS to H1 based on the pending H4 application?

  • Assuming that USCIS starts accepting premium processing applications in February, would it be possible to upgrade the spouse’s H1 extension application + H4 application + H4 EAD application and receive a decision quickly for all 3 applications?

Apply COS to H1 with pending H4 Application

You get 60 days of authorized stay if you lose your job on H1B and find a new job.

At this time, you have a pending H4 COS application which allows you to stay in US.

The next question to ask is the status of your i94? Has it already expired?

I can answer your other questions once I know your i94 validity date.


The online I-94 says ‘Admit until 01/17/2019’, so it’s not expired (yet).

Online i94 is probably showing your old record.

I am talking about the one that you got with H1B extension approval with old employer (Attached to i797A).

The I-94 attached to the i797 approval notice also has the same date: 01/17/2019.

Upgrade H1B, H4 and H4EAD to premium processing

Yes, you can upgrade the H1B application to premium if its available at that time.

Filing H1B while H4 COS is pending

This is a complex scenario and you can file H1B and start working immediately as long as your i94 is still valid.

After i94 is expired, you status is “period of authorized” stay and your H4 COS application becomes your bridge application.

I suggest you talk to attorney before starting work on H1B application (if you are able to get H1B employer).

Thanks! Your prompt responses are very helpful. Yes, I will be talking to a couple more attorneys to figure out next steps.

Hi can you please share what happened with your COS with a pending H4.

I am in a similar boat. My employment ended in March 1 and I just found an employer who can file a new H1B for me. But it is highly doubtful if it can be done within 60 days. There might be an overlap of 1 to 5 days and in the meantime I have filed for a COS to H4 which I am planning to withdraw once my H1 is filed.

I wish I had good news for you but the situation is complicated as you may have already found out.

First of all, your priority is to ensure you are not out of status. It appears that your employer may not file your H1 application prior to the expiry of the 60 day deadline (starting from March 1 in your case). This means you will be out of status once your 60 day deadline is up.

Next, you are applying to a change of status to H4, prior to your 60 day deadline being completed. Since you will have a pending COS application to H4 status, you will not be out of status after the 60 day deadline is over. However, in the period between the expiry of your 60 day deadline and the day USCIS makes a decision on your H4 application, you are not considered to be in any status. You are considered to be in “a period of authorized stay” until USCIS makes a decision on your H4 application. This allows you to stay in the country, but you cannot work for any employer. In addition, H4 COS applications do not have a premium process available and typically take around 3-4 months to be approved (sometimes longer).

This “period of authorized stay” is what will complicate the new employers H1 application. By the time the new H1 application is filed, you will not have a status—you will be in “a period of authorized stay”. You won’t have a status to extend or change. So the H1 application will be approved with consular process—you won’t be able to begin working for your new employer.

If you have a valid H1 visa stamp in your passport, under normal circumstances you would be able to leave & re-enter the country with the existing H1 stamp. This would change your status to H1 automatically and you would be able to begin working for your employer. Your I-94 would be valid until the expiry of your existing H1 visa stamp. If you have a valid H1 stamp, you can explore this option.

If you don’t have a valid H1 stamp in your passport, you may have to wait until the consulates resume issuing visa stamps.

I ran into some of these issues; for me things got more complicated because H1 premium processing was suspended at that time. So I had to wait for months, had offers withdrawn, etc.

Good luck with everything and consult a lawyer. These are difficult times, but with some patience and perseverance, you should be fine.

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Hello vrazsild, thank you very much for taking time and give a very detailed answer. I am indeed very grateful ! My stamp ends in 2022 but the situation is not very promising especially with no premium processing. I am working on trying to find attorneys to work it with. Thank you once again … stay safe …

Thank you guys! very helpful info. I am in the same boat. My H1B 60 days grace period ending this month end. Yet to file H4 COS. Can you please guide me if you have filed H4 online? Do i still need to mail the documents even if filed online?
Another question, if H4 COS pending and I have a valid H4 visa stamped and I will go out of the country and come back with H4, does it mean that I am automaticaly in H4 status and the H4COS void?

Please guide.

H4 COS will be automatically abandoned if you exit US for whatever reason.

Hi, we are in the same situation. H1b visa stamp and 60 days grace period ends in one week. Got another offer, but h1b to H1b transfer might not be possible due to little time left. Can they file for H1b under premium processing based on pending H4? Or h4 visa is essential.? When can I start working. I had applied for h4 last month. It shows getting h4 may take up to 10 months due to COVID. Please advise.

You can look at my previous answer above.
In short for a change of status, you need to have an existing status.
If the H4 application is pending, you are in “a period of authorized stay“, which is not a legal status, but it does allow you stay in the country while they work on adjudicating the H4 application.
If your employer applies for an H1 (premium processing or otherwise), the H1 will be granted with consular processing (i.e. change of status will be denied). This is because you don’t have a valid status to change from (this is assuming the H4 application is still pending at the time your H1 application is being adjudicated).
To begin working for your employer you will need to apply for a visa stamp at a consulate abroad and re-enter the country using the visa stamp.

Thanks a lot!

A little bit confused though.

Are you saying that to be able to work I need to get out and reenter in order to work even if my h1b is approved, I cant work without a stamp.

Meaning i cant work only on approved H1b , a visa stamp is needed?

So since they are not issuing visa stamps - I cant work till they resume the stamping?

Thanks a lot

So the employer can apply for your H1 requesting a change of status.
Since (most likely) you won’t have a valid status lthe change of status will be denied as explained above.
This doesn’t mean your H1 is denied, it means you cannot work until you are back in H1 status.
In your case, you can get back in H1 status via two ways:

  • if you have an unexpired H1 stamp in your passport, you may leave/renter the country using that H1 stamp. This puts you in H1 status and allows you to start working for your employer.
  • if you don’t have an unexpired h1 stamp in your passport, you will need to apply for one at a consulate abroad. I’m pretty sure you would qualify for an exemption from the current EO, and the consulate should grant you an h1 stamp.

Got it. How will I qualify for exemption and what do you mean by current EO? What do I need to get the exemption?

Thanks again. I really appreciate your quick responses.

Current EO (Executive order exemption)

Point to be noted :

“…seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.”

NewsFlash! DOS Adds More Exceptions to Executive Order Banning Entry of Certain Nonimmigrant Workers

12 Aug 2020

Today, the U.S. Department of State (DOS) updated the exceptions to the nonimmigrant workers who are prohibited from being admitted to the United States based on President Trump’s June 22, 2020, executive order. For example, the DOS now provides an exception for H1B, L1A, and L1B workers who are “…seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.” A brief summary of some of the other more noteworthy exemptions is listed below, for the benefit of our readers.

H1B Workers

Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States. Consular officers may determine that an H1B applicant falls into this category when at least two of the following five indicators are present:

  1. The petitioning employer has a continued need for the services or labor to be performed by the H1B nonimmigrant in the United States. Labor Condition Applications (LCAs) approved during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business. For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer. Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.

  2. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need. Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.

  3. The wage rate paid to the H1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.

  4. The H1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.

  5. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.

There’s an executive order in place which prevents consulates from granting certain classes of immigrants work visas. You should be exempt because you are present in the country prior to July 22 (which is when the executive order was issued). You should verify these details with an immigration lawyer.

Super helpful!

Thanks a lot. I really appreciate it. I am now connecting with the immigration attorney.