H4 EOS approved after H4 to H1b COS. What is my current status?

Hi Anil,

I see this question was answered, but mine has a little variation.

I have applied for H4/H4 EAD EOS in Jan 2021. H4 I94 was going to expire on 07/17/2021. Employer filed for H4 to H1b COS in July, 2021. It was approved on 07/15 with I94 start date 07/13/2021(backdated 2 days).
Later in August, I received an RFE asking what to do with H4 EOS application as I recently had a COS. I responded requesting to approve the I539 with an effective date of 10/01/2021, I thought I would have both H4 approval and EAD card in hand by then to continue working.
However, USCIS approved my i539 as an EOS with a start date of 07/18/2021(previous H4 expired on 07/17)
Now, I have 2 approval notices H1b(start date: 07/13/2021) and H4(start date: 07/18/2021). My employer lawyer says, I have to withdraw one of them very soon to continue on the other status.

The lawyers on Avvo, one said I am on H4 status based “last action” rule and another one says “H4 EOS approval has no meaning as I was not on H4 at the time of approval, there is no H4 to extend, and this is an exception to ‘last action’ rule”.

I understand this is a grey area and no clear indication from USCIS. Could you please let me know what status do you think I am on now?
Thanks in advance.

This is my understanding as well. EOS approval after a COS approval won’t mean anything as the beneficiary changed the status before the EOS was approved. EOS approval in itself can’t change the status back to what it was before COS approval. It has to be another COS application to be able to change back your status.

That said, I would just trust my employer’s immigration lawyer and follow their advice.

Thank you for the reply.

Just wanted to share further update on my case. I spoke with a USCIS T3 officer today. The T3 officer says I am on H1b status, H1b more like a primary status and if anything would happen to my H1b(like employer withdraws it), I can automatically fall back on H4 without needing a COS. He said if I want I can withdraw my H4 now.

If anybody in the same situation, I think they can safely assume they are still in H1b status, but I would file a proper COS application if I wanted to switch back to H4 status.

Thanks for sharing the update.