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Can I work on my H1B while my change of status from H1 to H4 is in progress?

Beaverton, OR |

I have H1B visa with I-94 expiring on March 02, 2014. I am planning to take a break for a year so will be applying for change of status from H1 to H4. My employer has applied for my H1 extension but it will easily take another 3-4 months to get approved. So I have to apply for my H4 before my I-94 expires (March 02, 2014). I would like to work on my H1B until end of March. Now my question is, can I apply for change of status from H1 to H4 online now (in next 1 week) and continue to work on H1 until my H4 gets approved or until end of March whichever is earlier? or do I have to STOP working as soon as I apply online?

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Attorney answers 2

Posted

You can work for the H1B employer beyond the I-94 expiration date based on its filing of an H1B petition requesting extension of status prior to I-94 expiration. However, once your application for change of status to H4 is approved, you must discontinue employment immediately. You are not required to be employed by the H1B employer when the application to change status to H4 is filed (in case you were wondering about it). Consult with your current immigration attorney for case specific advice.

The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter, nor should it be viewed as establishing an attorney client relationship of any kind.

Asker

Posted

Thanks Ajay. My specific question in this case is - Even though I am not required to be employed by the H1B employer when the application to change status to H4 is filed, I wish to work until end of March. So can I work until the Change of status to H4 is in-progress?

Ajay Kumar Arora

Ajay Kumar Arora

Posted

Yes, you can work until H4 status is granted.

Asker

Posted

Thanks Ajay. I have one last question related to this topic. After my H4 status is granted and then if my employer revokes the H1B due to my resignation, I will still remain in my H4 status, is that correct? Also after a year, any other employer can file for my H1 status which will be CAP exempt as I haven't completed 6 years on my H1B yet, right?

Ajay Kumar Arora

Ajay Kumar Arora

Posted

Yes to both questions, although there is no requirement to wait for a year for another employer to file an H1B petition requesting change of status from H4 to H1B.

Asker

Posted

Sorry to bother you one more time, but just thought of an interesting scenario here. What if my H4 status is approved & then within few days USCIS approves my H1B extension petition (which my employer has already filedlast month) and after that my employer revokes my H1B due to my resignation, then will I be out of status immediately due to the "last action rule"? What option will I have if that happens?

Ajay Kumar Arora

Ajay Kumar Arora

Posted

Yes, that will be a problem. The employer should ensure to withdraw its H1B petition on a timely basis. Consult with another immigration attorney if your current attorney is not responsive.

Posted

You can work on your H-1B until the change of status to H4 is approved.

Due to the nature of this forum, Attorney Maria J. Marty does not have all the information required to provide legal advice. Accordingly, her responses on Avvo are intended as general and not legal advice.

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