Returned to US with H1B to H4 when H1B received form 221(g), Now passport submit request issued

Hello Anil,

My employer applied for H1b in consular processing last year and it got approved in Nov 2018 but I got the validity only till Aug 2019. I went to India to apply for change of status from F1 to H1b but received admin processing.

As I am not sure about the timeline, I immediately applied for H4 and entered USA. As soon I am back, I applied for H4 extension + EAD along with my spouse’s H1B extension and got it approved till May 2022.

Now, I received an email from Indian consulate to submit the passport with reference to the H1B application.

Now, I am not sure which way to go, as I will be counted towards cap only if I change my status to H1 which is valid only till Aug 2019 or to keep working on H4 EAD which is valid for 3 years.

Can you please advise your opinion.

You can go to India, submit your passport and get H1B stamp. Get the stamp as you already applied for the H1B.
Then, enter USA using H1B visa and file for H1b extension.

Or you can enter using H4 even after getting H1B stamp if you want to keep using H4 EAD to work.

Thanks Anil. If I enter USA on H4, can I apply for change of status from H4 to H1 in future without going through lottery process again? or need to enter on H1 to be cap-exempt?

Generally, it is recommended to get into H1B status at-least once to avoid issues later.
These days, USCIS is issuing RFEs if you try to transfer H1B using cap-exempt application later without ever using the first H1B.

Legally, it is allowed but you cannot question USCIS if they send an RFE.

So, I recommend to activate your H1B once and then you can go back to H4 EAD to work.
Does that make sense?

Thanks for clarifying. One last question – So, enter USA on H1, then apply for H1 to H4 change of status and H4EAD again? But based on the current processing times, this might take more than an year right.

Yes, that’s correct. Change of status is taking ages to be approved.

It’s your choice what you want to do. I just told the current scenario on how USCIS is behaving. They may change their stance if someone else becomes president in next elections!