H1 to H4 to H1B Change of Status, Work from Receipt Date

H1 to H4 to H1B change of status cannot work from receipt date. H1B COS should be approved to move from H4 to H1B. H1B to H1B transfer can work on receipt.

Written by Anil Gupta
  By Anil Gupta          Updated  26 Jun, 19

  39    


H1 to H4 to H1B change of status work start date?

You have to wait for H1B change of status approval to start work.

You converted from H1 to H4 status within US and now filing H1B change of status again. You should start work for H1B employer only after your status is changed to H-1B.

Your current status H4 will stay with you until the H1B application is finally approved by USCIS.

Small consulting companies might lure you to start working immediately on filing H1B, but, beware that you will be violating your H4 status rules and this can put you in USCIS bad books.

H4 to H1B change of status work start date?

In simple H4 to H1B case as well, where you filed H1B with change of status in lottery. You can start working on Oct 1 or the start date of your H1B as approved by USCIS.

The change of status happens automatically on the H1B approval date and you should START working i.e. your payroll should be run to keep you in H1B status.
If you do not start working on H1B after its approval, you are violating your H1B terms.

Even in case of H1B premium processing, you should wait for approval before starting work.

Can I work in H4 Status while my H1-B transfer is in progress?

As answered above, you CANNOT work on H4 status unless your H1B is approved and status is officially changed to H1B.
You will get a new i94 on your H1B transfer approval which will correctly show your H1B status.

H4 EAD to H1B transfer, Start work on Receipt date?

You can apply for H1B transfer while on H4 EAD.
Since you are on H4EAD work permit, you can keep working on H4EAD status until your H1B transfer is finally approved and your status is changed to H1B.

Until you get the new H1B transfer i797 approval with new i94, your status will still be H4 and work authorization with H4EAD.

H4 to H1B cap exempt

You had an approved and stamped H1-B visa from outside USA which was never utilized. You quit the H1B sponsor employer and came to US on H4 visa as a dependent.

Now, a consulting company here in US filed a cap exempt H1-B transfer I-129 through Premium processing.
The consulting company has informed you that you can start working immediately after filing the case to USCIS i.e. even before getting the approval of H1 status.

DO NOT START WORKING based on H1B receipt if you are currently on H4 status.
It is not legal as your status does NOT change until USCIS approves it.

In this case, do NOT listen to consulting company as they just want to make money.

Since, you do not have a valid SSN and H1B work permit, you will be violating your H4 status rules.
DHS takes visa status violations seriously and can deny your other visa application in future.


USA Work in USA - H1B, L Visa
 






   39 Useful Questions & Answers from comments



  1. Beena
    Beena 20 Jun, 19 at 8:36 am

    Hi Anil,
    Thank you for all the information, I am in academic H1b currently that is approved till august 2021. However, I want to quit my job (due to continuous mental harassment and academic malpractice etc.), my husband who is an associate prof is on H1b with I140 approved. How should I proceed about quitting my job? should I first apply for H4 and then quit? do i still get that 60 day period to look for job?? In that case if I can find a job would it be difficult to transfer from H4 to H1?
    thanks for your time.

     

    • Anil Gupta
      Anil Gupta 20 Jun, 19 at 9:00 am

      You can quit and use the 60 day grace period to find another H1B job.

      If you file for H1b to H4 now and then again H4 to H1B, you would probably need to spend a lot of time waiting.

      The best option is to find a new H1B employer, file H1B transfer in Premium and then join on approval.

       

  2. Raj G
    Raj G 22 May, 19 at 2:01 pm

    Hi Anil. Very useful information above. Question, I am on my H1B with approval till 5/2021, but my current job is ending on 6/30. My wife is also on H1(cap exempt). If I apply for H4 on 6/30, and continue to look for jobs while the application in process, and get a job after 90 days, while H4 application is still in process (considering it is taking 8-10 months at Vermont). Do I need to go out of country and enter again with new I797, or can I just start working immidiately and request for withdrawal of H4 application? Would really appreciate your response. Thank you.

     

    • Anil Gupta
      Anil Gupta 22 May, 19 at 2:29 pm

      It is better in this case to go out of US, get H1B stamp and then re-enter to be on safe side.
      Your will add complexity to your case if you have multiple H4 and H1b applications pending at same time.

       

      • Raj G
        Raj G 22 May, 19 at 2:56 pm

        Thanks a lot. Small confusion: Assuming 90 days after 06/30/2019 I get a job offer, and company applies for premium H1B, and approval comes withing 20 days. All this happens while H4 application is pending. My passport has an H1B stamping till 2021. Do I still need to leave country and enter again with new I-797? or can I just request for withdrawal of pending H4 application?

         

        • Anil Gupta
          Anil Gupta 22 May, 19 at 7:42 pm

          Your new company will probably apply for H1B consular processing as you do not have any status after 90 days.

           

          • Raj G
            Raj G 22 May, 19 at 7:54 pm

            Thanks Anil.

             

  3. Vijay
    Vijay 8 May, 19 at 4:45 pm

    I hold an approved I-797 petition(H1B visa) valid till August 2019.

    Visa status : APPROVED.

    H1B visa got selected in lottery system and its got approved. I never worked on H1B visa.

    Currently I’m in USA on dependent visa (H4 VISA ..i.e normal visa not EAD)

    Is any employer can transfer my H1B visa petition ?

     

    • Anil Gupta
      Anil Gupta 8 May, 19 at 6:21 pm

      Legally, you can file H1B transfer but chances of RFE are very high to prove H1B status.
      USCIS is asking to prove that you activated your lottery selected H1B at-least once to file H1B transfer these days.

       

      • vijay
        vijay 9 May, 19 at 6:41 pm

        Thank you for reply.
        can you please help me , how to over come this situation.
        My previous employer who has filed my visa,but now they don’t have onsite opportunity.
        So I quit my job and joined the new company. Meanwhile my wife got H1B visa and she moved on USA.
        Currently I’m on H4.
        I have 9 years experience on Java Technologies.
        Few employer saying that they will transfer the visa in premium processing.
        Please help me , what all things I need to take care while transferring the visa with new employer.

         

        • Anil Gupta
          Anil Gupta 9 May, 19 at 7:04 pm

          You do not need to take care of anything. Your new employer who is filing transfer will do everything.

           

          • vijay
            vijay 9 May, 19 at 7:04 pm

            Thank you so much Anil..

             

  4. Kumar
    Kumar 16 Apr, 19 at 2:20 pm

    My spouses employer did withdraw her H1B from Dec-7th 2018, she couldn’t find a new position within 60 days, so we applied for H4 visa based on my H1 approval. Few days after she got a project and her new employer initiated her H1B transfer and she started working on receipt as her status did not change to H4. On April 10th USCIS approved her H4 visa but the H1B transfer is in RFE.

    Technically she is on H4 from April 10th and her H1B transfer is in RFE state, her employer is trying to submit her RFE response documents. Can she still work as her transfer petition is still valid?

     

    • Anil Gupta
      Anil Gupta 16 Apr, 19 at 2:20 pm

      No, she cannot work as her status is H4 at this time.

       

  5. Durga
    Durga 5 Apr, 19 at 3:40 pm

    Held H1b for 3.5 years but had to leave for India on account of extension denial. Back in US now on H4. Found a potential employer to apply for H1b transfer with extension and change of status. However they applied for LCA as “Change of employer” instead of “New Employment”, because only in later case can change of status be applied. Are they correct to apply as Change of Employer? How will the change of status happen then? Can you please advise.

     

    • Anil Gupta
      Anil Gupta 5 Apr, 19 at 3:54 pm

      Not sure what is the confusion here. If you are on H4 visa, and if they have filed an H1B form, off-course, they are asking for change of status.

       

      • Durga
        Durga 5 Apr, 19 at 4:11 pm

        So the confusion is how should the LCA be filed for this change?

         

        • Anil Gupta
          Anil Gupta 5 Apr, 19 at 4:41 pm

          Off-course, it is a change of employer application as you have found a new employer than your previous H1B approval.

           

          • Durga
            Durga 5 Apr, 19 at 5:39 pm

            Can you please be more specific, should we file with “new employment” on LCA or “change of employer”? Also on i129 would it be “new employment and change/extend status” or “change of employer” there too? Thanks!!

             

            • Anil Gupta
              Anil Gupta 5 Apr, 19 at 5:39 pm

              Your attorney should be able to handle it.
              I cannot be more specific without looking at your case details.

               

  6. sachinrajput
    sachinrajput 22 Mar, 19 at 8:04 pm

    Last year (2018) my wife was on F1 OPT and her company had filed H1b. H1b was picked in lottery but got denied. She has masters degree from US and is currently on H4 EAD. She got an offer and company is wiling to file H1b for this year. Is she cap-exempt for H1b, as her H1b was selected last year in lottery?

     

    • Anil Gupta
      Anil Gupta 22 Mar, 19 at 9:20 pm

      No, she is not cap exempted as per my information as her H1B was finally denied.

       

  7. Neel A
    Neel A 14 Mar, 19 at 3:04 pm

    Hi Anil,
    I’m filing in PP for my H1 Extension alongwith H4/EAD for wife. Let’s assume the approval for H1/H4 come by end of March. EAD as we know takes few months and so, while H4 is approved and we’re waiting for H4-EAD approval, can my wife file a H4-H1 COS in PP (she has an I-140 from previous employer) ?
    Will that H1 application cancel/nullify the H4-EAD approval ? (Since there is uncertainty around H4-EAD,we want to start that process now and try for H1 parallely)

     

    • Varun Bansal
      Varun Bansal 14 Mar, 19 at 3:24 pm

      I think it depends, if the new H1 will be filed as COS, she will automatically be on H1. Even if her H4 EAD gets approved, it does not matter, her current status will be H1B as you are fillign her h4 to H1 COS. She has to go out of country to change the status back to H4 if you want.

      If she is on H1B, she is no more on H4 and hence cannot be use H4 EAD but you know USCIS is not clear about H4 EAD in and out.

       

      • Neel A
        Neel A 14 Mar, 19 at 3:43 pm

        Thx Varun for the response. To further clarify:
        1. Once her H1 is approved (but not stamped yet), can she no longer work on her existing H4-EAD ? She needs to switch to working on H1 asap ?
        2. What if H1 visa stamping is denied ? Will the earlier approved H4EAD can be used again ?

         

        • Varun Bansal
          Varun Bansal 14 Mar, 19 at 3:55 pm

          1. Yes, that’s what I know. Reason being, she will get her updated I-94 with approved i-797.
          2. Yes, she can come back on already approved H4 visa stamping. At POE, she would have to show one visa. In this case, she would have already stamped H4 and in this way her status will again be changed to H4.

           

        • Anil Gupta
          Anil Gupta 14 Mar, 19 at 6:27 pm

          If you file H4 to H1B as change of status, the status will automatically change to H1B immediately on approval. Your wife has to work as per the H1B terms and with the H1B employer immediately starting on the next day of approval.

          If the H4 EAD is pending at this time, it will most probably receive an RFE to prove the H4 status.

          H1B stamping comes into picture if you file H1B as consular processing which you are not filing.

           

          • Neel A
            Neel A 15 Mar, 19 at 12:57 pm

            Thx Anil. So, what happens in the below case :
            1. She currently has H4/EAD with visa stamped until Sep. We’re filing for H4/EAD extension now and assume it will be approved in 3mos
            2. Then we file H1B and if approved,she will need to work on H1B
            3. She goes to Mexico/India for H1B stamping and it gets rejected there. She will enter back US on the H4visa. Can she now continue to work on the EAD that was approved in Step-1 ?

             

            • Anil Gupta
              Anil Gupta 15 Mar, 19 at 7:58 pm

              Yes, she can enter US on H4 visa and use her approved H4 EAD to work.

               

  8. Varun Bansal
    Varun Bansal 14 Mar, 19 at 2:07 pm

    My wife is working on H4 EAD with employer A and she now have H1B approved with lottery from employer C. Her employer B did not file her H1B with change of status. I know that in this case, to activate H1B she has to go to India for stamping and come back on H1B.

    But let’s say, if she does not go to India for H1B stamping of employer B, and is still working on H4 EAD with Employer A, can she transfer or file a new H1b under cap exempt with employer C? Wont the new employer need paystubs and all the information from Employer B? How does this work?

     

    • Anil Gupta
      Anil Gupta 14 Mar, 19 at 6:27 pm

      Your question about H1B Transfer after H1B lottery approval has been added it to our forum as it is out of scope of this page’s content.

      I have answered it on forum. You can ask follow up question on forum itself. We answer within 1-24 hours.

       

  9. Viral Zaveri
    Viral Zaveri 13 Mar, 19 at 1:20 pm

    Hi Anil, thank you for this informative article. However, I am not clear on one thing: my wife is currently on H-4 EAD (came to U.S. on H4 then COS to F1 and then COS to H4 again). She wishes to find an employer that can sponsor H-1B for her and get out of this H4 EAD headache. Would she fall in new H-1B cap category for which her employer needs to file H-1B starting April 1, or cap exempt so her employer can file H-1B anytime?

     

    • Anil Gupta
      Anil Gupta 13 Mar, 19 at 8:45 pm

      If she never had any H1B approved for her earlier, she need to file H1B in cap-subject lottery that starts on April 1 each year.

       

  10. MMS
    MMS 11 Mar, 19 at 12:06 pm

    Hello All, I Have a query, My wife H1B extension is denied. I am planning to covert to H4EAD. Now can she move back to H1 at later point?

     

    • Anil Gupta
      Anil Gupta 11 Mar, 19 at 12:50 pm

      Yes, she can move to H1B whenever she wants by filing H4 to H1B change of status application.
      This is precisely what has been explained in above article.

       


Ask on forum - Get Answer in 1-24 hours