My H1B was picked up in the lottery this year. Case was upgraded to premium and received RFE. My STEM OPT is ending on August 31st 2019. My employer is taking time to respond to the RFE. I do not want to risk my status as I cannot leave to my country if in case my H1b is messed up. I want to wait and see if my employer responds to RFE before August 20th and apply for H4 COS if they do not send RFE documents. Can I apply for H4 COS while my H1B is pending? If my H1 is approved after I send H4 application, can I withdraw H4? If my H1 is rejected after I send H4 application, is H4 receipt notice good for me to maintain legal status?
Good plan. I do note that following the ending of your STEM OPT, you are still allowed 60 days grace period to depart the US, so your timing is not as critical except for your ability to work after August 31. Applying for a change of status to H-4 while in valid F-1 status would insulate you in the event that your H-1B petition is denied. Individuals who apply for H-1B while under OPT are allowed to work until September 30 under the cap-gap rules, and I guess the question could ultimately be whether your continued work under cap-gap after August 31 (if you decide to keep working) would run contrary to the F-1 grace period rule which does not allow employment. If the H-1B is approved, you can withdraw the H-4 filing. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.
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