Stay in US while H4 COS is pending - H1B 6 yrs completed

USA H4 Visa
1

Hi

My I94 date is dec 15 2018 and my h1b visa had dec 5 2018 (h1b exhausting 6 years).

H1B to H4 COS pending

I had applied for COS and H4 EAD on sept 20 2018. So basically i am not working now (from nov 20th) but i dont have any decisions from uscis on COS OR ead.

My perm was raised sept 2018.
All these are pending…

Can I stay in US while H4 COS is pending and not working on H1B?

so i am eligible to stay here right as the COS deciison is pending? … pls let me know

Start working based on i140 and PERM approval?

based on perm and i140 if decisions are positive can i start working? note my i94 expires dec 15 and h1b 6 years (stamped visa) 0n 5th dec

2

Stay in USA while H4 COS pending

You can stay in US while your H4 COS is pending even after i94 has expired but do not expect a decision soon as it may have long processing time:

https://www.am22tech.com/uscis/current-h4-processing-time/

Start working with PERM and i140 approval - NO

You cannot start working immediately unless you have some work authorization like H1B or H4 EAD.

If your PERM and i140 is approved and your current status is H4 (if H4 COS is approved by that time), you will have to file H4 to H1B COS again to start working.
Not: You cannot work until your status is actually changed to H1B again or you have got H4-EAD which allows you to work too.

Read more:

3

Thanks much for a quick respose
One more query, suppose by the time i have i140 decision in hand but COS is yet with uscis, can i start working then?

4

You have to file H1B extension anyway even after i140 approval.

Also, if your H4 COS is still pending at the time of filing this H1B extension (with i140), you should EXPLICITLY file for H4 COS withdrawal.

If you do not file for withdrawal of H4 COS, it may be approved and your status WILL AUTOMATICALLY change to H4.

5

So in this situation (suppose my extention applied and i cancel COS, and i94 is already expired by that time) am i eligible to stay in US,

6

No, you cannot as you need a valid status to stay in US.

7

Thank you i have one more question-
Suppose my perm gets approved before i94 h1b date that is 15 dec… but my stamped visa has dec 5 th… can i resume back based on this?
In the DOL site it shows as certified as of today

8

No, for working in H1B 7th year day one, you have to have H1B either pending or approved for 7th year extension.

7th year extension can only be filed if

  1. PERM is pending > 365 days OR
  2. PERM and i140 are approved
9

Oh okay…
Since my perm is apprved now… i can continue to stay with my H4 (application is pending with uscis though) right?
Only when we apply for h1b 7 th year extention afer i140 i have to withdraw the h4( provided it is still pending with them)

10

Yes, that’s correct.

But the complication will be added if your i94 is expired.
You cannot start working on H1B after filing as your status would be ‘period of authorized stay’ after i94 expiry.

You can only work after H1B extension approval in this case.

11

@Anil_Gupta
Can we not have 2 applications in process, H1 TO H4 COS(As a backup) and H1 extension at the same time, after I-94 expiry? What are the consequences to this?