My last day of employment is tomorrow and I am planning to file a COS to H4 tomorrow. Meanwhile if I get another employer to sponsor for my H1 before my H4 gets approved, can I get H1 COS (from pending H4 to H1) approval via premium processing? Will I be considered out of status during the time my H4 was pending?
Yes, no problem, as long as USCIS receives your application for COS back to H-1B while your TIMELY filed COS to H-4 is pending and you are considered pending COS to H-4. Note that in that type of situation, due to the fact that while the COS to H-4 is pending you are no longer considered in valid H-1B status, you will not be able to "transfer" and start working for the new H-1B employer upon USCIS having issued the receipt of the new H-1B petition, but must wait until the case actually approved before being able to work in H-1B status again. Thus, best to file via Premium.
If my answer is the "BEST ANSWER" and/or "HELPFUL" please mark it accordingly. Fluent in 7 languages. Certified Specialist in U.S. Immigration & Nationality Law, The State Bar of California, Board Of Legal Specialization. 22 years of successful immigration law experience. The answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.
USCIS needs to receive your COS application before your status expires. From your posting, it seems that your status expires tomorrow but you aren't mailing your COS application until tomorrow as well - USCIS needs to RECEIVE it while you are in status, the postmark date does not count for this purpose.
You can do so, but it might to simpler to go abroad to get a new H-1B visa stamped in your passport.
Mr. Shusterman's (former INS Trial Attorney, 1976-82) response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
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