H1B expired, H4 COS pending, 240 days rule

Dear Mr. Anil Gupta,

Would you kindly answer the following question?

I work as a researcher in a state university.

My second and final H1B expired on Nov 30th, 2018, and my I-94 expired on Dec 10th, 2018.
On November 7th, 2018, the USCIS received my I-539 (H1 to H4) and I-765 (H4-EAD) and I have the official receipts.

My wife is on her H1B and our I-140 was approved under EB1A in August 2018.

The university asked me to resign with Nov 30th as the last date with an understanding that I will be rehired when my H4 EAD is approved and arrives.

Does the 240 day rule for the H1B apply to me? Did I hastily resign? Can I continue to work until my H4 EAD arrives since I applied for a COS to H4 BEFORE my current H1B expired?

Than you so much. Really appreciate your inputs!

No, no cannot work until you really have any work permit.

In your case, since you did not file H1B extension, you cannot work. Instead you have filed H4 COS application which does not allow you to work.

At this time, your legal US status is ‘period of authorized stay’ due to pending H4 COS application.

You cannot start working until you really get H4 EAD card in your hand.

H4 COS status approval is taking forever these days!!

The better and faster way would have been to go out of US and get H4 stamping from US embassy. This would have at-least expedited your H4 status.
Then, H4-EAD would have taken about 3-4 months.

Does that answer your question?


thanks for the lightning reply.

you say: “In your case, since you did not file H1B extension,…” does that mean I had a chance to apply for an H1B extension?

Just to be clear, I applied for a concurrent H4 COS and H4 EAD.

so at this stage, if i went to india for a consular stamping and get H4 stamped, how will that affect my concurrent H4 COS and H4 EAD applications already with the california service center?

if i came back with a valid H4, will my current application for H4 EAD be still valid, or will i have to do a fresh H4 EAD application?


You could have filed H1B extension after 6 years if your i140 was approved.
If you don’t have your own i140 or your own PERM, you had no option with H1B after 6 years.

H4 COS will be abandoned if you go out of US

If you go out of US now, your H4 COS application will be abandoned automatically by USCIS.
The dependent H4 EAD may or may not be approved in that case.

Now, if you go out and re-enter US with H4 stamp, it is possible that your H4 EAD has still not reached a result.

Now, USCIS may issue RFE on H4 EAD application to show your H4 status (as it was abandoned when you moved out).
At that time, send your H4 status proof I. E. H4 stamp and i94.

Does that help?

yes, i do not have my own I140.

my wife’s I140 was approved in EB1A on August 31st, 2018 and we were hoping to do a I-1485 hoping that October 1st, 2018 will be the current date.

but thanks to retrogression, that is not possible yet.

meanwhile i had no choice other than applying for H4 COS and get an EAD and proceed to work on it until both my wife and i got our GC EADs based on I485.

i understand what you said. with minimal risks involved, what do you suggest i do?

If you want to join work as early as possible, then go out of US and get H4.

If you have enough time without work, wait for H4 COS to be approved right here in US. It can take anywhere between 10-13 months at this time!.

thanks Anil.

so are you suggesting that H4 EAD takes relatively lesser time than H4 COS? in which case it appears to me that it is best if i went to india, get H4 stamped and just wait for the H4 EAD here?

for your notice, my application went to the California Center which your tracker seems to be better compared to other service centers! :slight_smile:

just confirming, there is no premium processing for H4 COS and H4 EAD right?


Yes, H4 EAD takes less time than H4 COS.

H4 EAD cannot be approved without H4 status in US

Please note that your H4 EAD cannot be approved if you are outside USA.
A valid H4 status proof is required for EAD to be approved.

And for valid H4 status, you have to be present in USA.

H4 and H4 EAD premium

There is no premium processing available for H4 and H4 EAD type of application.

They can only be processed bin premium, as a courtesy, if file concurrently with H1B premium.