H1B to H4 and then H4 to H1B cap exempt(I797 expired, I 140 approved and H4 status pending only receipt received)

USA H1B Visa
1

I am living in USA. My max out for H1B was Aug 12, 2022. PERM was approved on Aug 08, 2022. Since i-140 was filed in premium but not yet approved, my attorney filed COS to H4 on Aug 09,2022 being effective from Aug 11,2022. A receipt notice was received for H4 on Aug 17,2022. Meanwhile, I-140 got approved on Aug 17,2022.New LCA was filed and approved .H1B petition was filed on Aug 26,2022. My question is:

  1. How is this case handled by USCIS, since I have applied for H4 and H1-B both. Does both have to be approved? And which one would be applicable.
  2. What are the chances my H1-B petition would be approved given I have just the receipt for the H4.
  3. I have not left the country at any point during this process, do I have to leave the country for stamping in any case like what happens if my H4 is denied but H1B is approved?

4.Will my status change again from H4 to H1B be taken care with H1B petition? Or I need to separately take care of it?

2

To approve H4 to H1B COS, USCIS will first have to approve H1B to H4 COS that you filed on oth August.

If not done already, upgrade H1B to premium processing and this will force the USCIS to approve the H1B to H4 first and then H4 to H1B.

Answered above.

Why do you think your H4 will be denied? I dont see any reason for denial if you filed COS to H4 before your H1B I-94 expiry.

Answered above.

1 Like
3

Thank you so much for your reply.
My H1B is filed in premium processing only.

I wasn’t sure if H4 has to be approved before we apply for H1B petition. I think I came across it on same website for other cases.

Also, my employer told me the same that I might get H1B approved but there are high chances I would need to go for stamping. He mentioned this is like H1B approved but with consular processing. In what case would this situation arise?

4

@Kalpesh_Dalwadi Could you please provide clarity on above query.

5

Your H4 should be approved as you filed H1B with change of status under premium processing.

1 Like
6

@Kalpesh_Dalwadi Hi Kalpesh,
Your guidance helped.Thank you.

I received RFE in H1B on Sept 02 but my H4 got approved on Sept 06.
The RFE only requests evidence pertaining to the I-539 that was pending at the time the H-1B petition was submitted.

I received courtesy copy I-797C for H4 in mail on Sept 09 from USCIS. It does not have I-94 information on it. My attorney has not yet received the official approval notice I-797A for H4 which has I-94 information on it.

  1. Wanted to confirm if my attorney can respond to USCIS for my H1-B petition with the courtesy copy of H4 to show that it is approved or should we wait for the official approval notice for the H-4 application?

  2. Also, how much time does it take to receive the official approval notice I-797A for H4?

This is a bit urgent and if you could help me in making a decision here.

7

I received the I-797A official approval notice for H4 as well.Thanks!

8

Your lawyer knows better than myself :-), the answer is yes.

1-3 weeks.