H1B extension pending, 240 days after i94 expiry, file COS to H4? Leave US?

My Wife is employee of company X and her I94 got expired on June 30 2017. Extension was filed before expiry but the case is still pending with USCIS.
She is now not on payroll as 240 days are over.
I have filed a COS for her from H1 to H4 & EAD (on my H1 which is also under processing with USCIS and I-140) on Mar 15 2018.

Now X is saying, she need to resign and once resigned, they will WITHDRAW her H1 application which is pending with USCIS.

  1. Will she be considered as “Out of Status” from July 01 2017 to March 15 2018 because X would withdraw the pending petition? Will it create a void/vacuum for this period?

  2. Although we have filed CoS from H1 to H4 for her before the withdraw, does she need to travel back to India before withdraw of H1 or can she stay in US?

  3. If she don’t travel back will her status be “unlawful presence” and might have that > 180 - 3 yr ban rule if she don’t travel?

  4. Does the New 60 day revoked/withdraw H1B Rule applies as we applied for COS b4 withdraw but after I94 expiry?

1. “Out of Status” if employer X withdraws pending H1B petition?

If company X withdraws the application, then her time from i94 expiry date to withdrawal date will be counted as ‘Period of authorized stay’.
More information:

2. Change of Status after i94 expiry

The COS application does not make any difference now. A COS application should be filed before i94 expiry to be valid.
Also, her status will NOT automatically change just on the basis of filing. COS application has to APPROVED to start new status.
See this snapshot from USCIS change of status guidance document:

change-of-status-i94-expiry-truvisa

As per my information, she will start accruing “unlawful presence” after 240 days of i94 expiry OR H1B withdrawal date, if she does not leave USA.
Yes, the ban rule will come into picture if she starts accruing “unlawful presence”.

The decision to allow COS after i94 expiry rests with USCIS and it is not possible to guess what they will do here.

3. H1B 60 days grace period after i94 expiry

No, the 60 day H1B grace period rule is not applicable in your case.
It is ONLY allowed if the i94 is still valid (has not expired).

Let me know if you need more information.

Thanks Anil.
My wife would be travelling back to India before the company X withdraws the H1 so that she don’t go under unlawful presence.

quick follow up questions:

  1. As we have filed CoS which is now in USCIS hand whether they approve it or not if they consider it invalid or whatever. As my wife is going back to India, we will be filing H4 via consulate directly in India. so that it can be approved directly at consulate and she can come back to US on H4 .
    Q: She will have 2 H4 - 1 filed at USCIS which might be invalid (have filed EAD along with it to USCIS. and 2nd is at consulate. Just to confirm - this is fine, right?
  2. Lets assume she comes back on H4 she got from consulate in india - should we withdraw the COS H4 and EAD filed here to USCIS in US or wait for to see the result?
  3. If wait, what if both H4 gets approved? I am assuming as we would be requesting same end date for new H4 at consulate, it should be fine.
  4. Can we withdraw the EAD application once she is back and then file it again?

Hi @ankitgarg16

1. COS is abandoned if person moves out of USA

Once she leaves USA, her H4 COS application will be abandoned by USCIS automatically. See more information here:

2. H4 EAD application if H4 COS is abandoned

Since, H4 COS would have been abandoned by USCIS, the H4-EAD cannot be granted. So, both H4 and H4-EAD application would be void.
Even if H4-EAD application stays active, it cannot be approved without H4 status. So, USCIS will either reject the EAD application or will send RFE.

3. Both H4 COS and H4 at US embassy gets approved

This scenario is not possible. H4 COS will be abandoned automatically by USCIS when H4 moves out of USA.

4. File H4 EAD application again

You will have to file EAD application again with proof of H4 status.

Thanks @Anil_Gupta

Resigned from H1 and returned to India after 240 days

So as I mentioned earlier, my wife’s I94 expired on June 2017 and she was on H1.

After 240 days (ended on Feb 25 2018) company stopped her payroll and she was given unpaid leave for 30 days to wait for USCIS if they approve the H1 application.

Nothing happened to H1.

So now she resigned and now company is going to withdraw the H1 application as explained earlier and she is going back to india.

H4 consular Interview - What to say?

As we will be filing the H4 in India via consulate - in interview they can ask that what was your status from June 2017 to feb 25 (240 days) and she stayed 30 days on unpaid leave as per the rule that she cannot work after 240 days if extension is not approved.

  1. So, can we tell the consulate if asked that she was in authorized stay on H1 and USCIS didn’t respond to her H1 so she stopped working on 240 days?

  2. Can they cross question then why did u stay there for 30 more days after 240?

    If yes, isn’t it valid that we can stay but not working and explain that we were on unpaid leave for 30 days before I resign to see if USCIS adjudicate her H1 and not working after 240 days.

    Can show the receipt notice of the H1 that was there but will be now withdrawn by the company as she had to resign coz of no decision on that by USCIS

Can stay from 240 days of expiry - waiting for H1B result be a problem in H4 visa interview?

As per your previous explanation it looks like it won’t be an issue as it was an authorized stay status from 194 expiry to date of H1 withdrawal and we can show the receipt notice if asked. Please confirm

Hi @ankitgarg16

Yes, she can explain the situation, if asked to explain and it should not be a problem.
These delays and your kind of situation is happening with many people due to the extensive delays in USCIS processing.
So, there is no need to worry. You have followed all the processes as laid down by USCIS.

On the other hand, try to talk to your wife’s company and see if they can avoid withdrawing the application
Or upgrade it to premium.
That would help to keep the records clean.

Hi Anil,

As you mentioned that her current CoS is anyways not valid and will void once my wife leaves the country and EAD depends on USCIS if they keep it active (I may get RFE) or reject that as well automatically.

Question:

  1. Once she leaves US, should I withdraw the H4 & EAD application? This was filed by my employer and can ask them to withdraw.
  2. If I withdraw will USCIS refund me the amount of EAD? I anyways have to apply again once she gets her H4 done via consulate and come back here.
    1. Or Should I rather let it be and let her come back then see what happens with the COS H4 and EAD?

Hi @ankitgarg16

1. Withdraw pending application with USCIS

You can withdraw but it’s actually not necessary. You will un-necessarily be spending money on filing for withdrawal. I mean the attorney fees.

2. USCIS fees refund

NO REFUNDS are given by USCIS unless there is a mistake done by themselves.

You will not gain anything by withdrawing the application anyway.
So, I would suggest that let it be and see what happens.

4 posts were split to a new topic: H4 visa appointment questions as my wife is in India

5 posts were split to a new topic: H1B Extension Approval start Date does start from i94 expiry date

Hi @Anil_Gupta @ankitgarg16

I am in same situation as Ankit.

H1B extension pending, i94 expired

My wife filled her H1 extension last year May 2017. Her I-94 expired on Aug 2017.

240 days after i94 ending

Her 240 days ends on April 30 2018. We have not received even an RFE on it .

Can H1b stay in US after 240 days of i94 expiry - baby born and needs US passport to travel

We had our first baby in March , I am working on his passport and other stuff. It might take at least 2 months to get everything.
So can she stay in United states for next 2 months? It wont be considered as illegal stay ?

Get H4 stamping in India

My wife employer is ‘OK’ not to withdraw the petition. Can she go to India in July and get her H4 visa stamping ?

What if we receive an RFE before July ?

Convert H4 to H1B after coming back to USA?

Once she is back , can she again convert to H1 b visa with same or different employer?

Thanks
Sai

Hi @saineele

1. Stay in US after 240 days of i94 expiry - NOT recommended

Your wife can stay in US after 240 days but I do NOT recommended.

It adds ‘Out of status’ time to her name. I always insist people to leave USA to avoid un-necessary issues later.

Note than even though she can stay but she CANNOT work.

It can be a problem for future visa approvals given the kind of strictness USCIS is showing these days, it is really not worth taking the risk.

2. Withdraw h1B pending extension application after 240 days

It does not matter if the employer withdraws the H1B pending extension application or not.
If she is NOT working i.e. not generating payroll after 240 days, she is NOT in compliance with H1B status rules automatically.

3. H1B extension RFE before 240 days completion

If you receive RFE after or before 240 days, I would still suggest to leave USA. Wait for RFE result outside USA.

The best option would be to upgrade the application to ‘Premium’.
Ideally, i recommend to upgrade to premium at 200 day mark. You have already past that mark at this time though.

4. Join same or new H1B employer after entering USA

It depends on what status she re-enters USA. Both options are possible i.e. H4 and H1B.
Yes, she can join her same employer if their H1B application is approved at that time.

Let me know if you need more information.

Thanks @Anil_Gupta for quick response.

I am waiting on my Child’s Passport and Indian Visa. As soon as we get it , she will plan to India .
She stopped working.
From above I understood that , she can stay but she cannot work.

Is it Ok to keep the pettition Open even after she change her status to h4?
Or does her employer need to with draw?

And how she can come back to H1 visa again?

As she dont have enough supporting documents , we are afraid of doing it to premium.
Couple of issues:

  1. She joined X client on May 8 th , but her employer filled her joining data as May 10th.

  2. She is in E-V1-V2-C model, main vendor(V2)is providing the document saying My wife is full time of vendor company V1. Afraid to submit these document.

Thanks a lot in advance . Please advice me how to proceed.

Thanks
Sai Neele

1. H1B Stay beyond 240 days at your own risk

My answer would be that she can stay in USA after 240 days at her own risk.

2. H1B premium processing gets More RFE - FALSE

I don’t understand what difference would premium make if you don’t have proper paperwork?
If USCIS has to detect that problem, they will detect it in regular processing as well.

There is nothing like premium processing gets more RFEs. That’s a myth.

You can keep the H1B petition open and wait for it’s result.

3. File H1B COS once H1B is approved

Once the H1B is approved, she can file change of status if she is on H4 in US at that time.

Thanks @Anil_Gupta .

I am checking with her employer regarding upgrading it to premium.

Thanks once again for your suggestions.
I will update you my situation.

Sure. All the best.

Let me know if you need more information.

HI Anil,

Hope you are doing good.
Based on our previous discussion, on COS and EAD application withdrawal discussion.
I am thinking to withdraw the COS and EAD otherwise as you mentioned and on USCIS site it is mentioned that will be denied (both of them).

Isn’t it better not to have any denial on our records and better to withdraw it before they deny it? I anyways have to refile the EAD as my wife’s H4 has been approved via consulate so she will be travelling back to US soon. So why not withdraw both COS and EAD that was filed earlier which has now become void and not have any denial on records.
Otherwise when filing again - have to mention that EAD was denied earlier in I765 form where they ask a question if it was ever denied which might impact the decision on it, isn’t it?

Hi @ankitgarg16

It is your choice to withdraw, if you want to do it. It’s not really required.

If your wife left USA after filing, the COS would automatically have been abandoned by USCIS anyway.
And since there is no valid H4 status, H4-EAD will also be denied.

You can now simply file a new H-EAD application based on her H4 status and the i94 that she will receive on entering USA.

Does that answer your question?

5 posts were split to a new topic: Sample USCIS application withdrawal cancellation letter

Thanks for your inputs @Anil_Gupta .

My wife is planning to go to India and convert to H4visa . Even today her h1b extension is showing Case Received. (Her employer dont want to file h1b premium because of missing docs and also my wife stopped working and she is on her maternity leave).

below are my question:
1)Does she need to go for h4 visa stamping before her employer withdraw the h1b extension petition?
2) When she convert form h4 -h1 again after coming to USA , does she need to go back india for H1b stamping immediately?

Thanks
Sai