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.

@Pratima @Kalpesh_Dalwadi i am in similar situation as I have applied for h4 extension on June 2021 as my h4 going to expire on June 2022.

Meanwhile my h1b got picked and filed h1b cos and it got approved on October 14 th 2021after 2 weeks h4 extension got approved with June 2021 to 24 . As per your response it looks I am in h1b, is that right. Can you please let me know way to talk to uscis tier 3 team

Hi Karthik,

There is no direct way to speak with a T3 officer. Both T1 and T2 officers were not able to confirm which status I am on. so they scheduled a call with a T3 officer.
The T3 officer I spoke said my status is H1b and continues to be H1b until it is withdrawn or expired. He said if I wanted I can withdraw my H4 approval.

However, I applied for my DL with my H1b I94 and by the time they checked for legal presence my H4 was approved, so they issued DL based on my H4 I94(which has a few months shorter validity than my H1b I94). So I advise it is better speak with your employer and withdraw one of the approvals.

@Pratima thank for your response. Spoke to T1 team, they said same whet ever they responded to you. It looks your DL is with h4 and for my case I got approval for h4 also they said no need to withdraw my h4. If I try to renew my DL and provide h1b info are they not using that please

Hi Karthik,

I used my H1b approval notice with attached i94 for drivers license renewal application. Here in CA, they issue temporary license first and mail out a permanent license after they do legal presence check. By the time they did legal presence check my H4 was approved, so they issued the DL expiration date matching my H1b i94 validity end date.