H1B to H4 transfer and changes of H4-EAD

I am looking for advice on my employment-based immigration case. I currently hold an H1B visa and my i140 was approved back in 2015. It was filed on the EB2 category and, being an Indian citizen, I am waiting for my priority date to become current. I am in my 7th year of H1B and have used up all the first 6 years of H1B.

My wife is also on H1B and has her I140 approved just recently under the EB1 category. She too is from India and is also waiting for her priority date to become current.

Given this situation, I am exploring the opportunity to go on H4, depended on my wife and am looking for advice on the following:

  1. If I go to H4, what will happen to my H1 and i140? Can I get that back at a future date with another employer who is willing to hire me on H1 or will I have to go through H1B visa lottery?

  2. If I can get back H1B at the future date without going to the lottery, what are the constraints on the new job employment/description to file my H1B based on my current i140? - (Location/Skill etc. kind of constraints)

  3. If I have to go through a lottery to get my H1B, will I have to go out of the US for a year to get that?

  4. If I go to H4, can I get H4 EAD and work? What are the constraints of doing this and what are the risks? How long can I work on H4 EAD?

  5. My wife’s I140 was filed in October 2019 - it has not been 6 months yet. Assuming her employer will not rescind the i140 application, can she change her job and still keep the priority date or she is better off waiting until 6 months have passed?

Please advise me on these issues. Thank you very much for your help in advance.

Hi @dkw34892

Going Back to H1B after H4

You can go back to H1B without lottery after H4 if you have your own i140 approved for more than 180 days. You can do this anytime in future until your green card priority date is not current.

Is new i140 required after going back to H1B?

I140 is for future job and you will need a new i140 with mew employer for its new job to file i1485 as and when your PD date gets current.

Can I get H4 EAD?

You can get H4 EAD if your wife’s i140 is currently approved.
I suggest to stay with current employer for at-least 180 days to make i140 withdrawal safe.

If employer does not withdraw i140, then you are fine leaving them and join any new employer.