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Comprehensive Guidance on H1B Change of Status Application
May 7, 2022
5 mins
Brown passport cover and visa, round check boxes with the tick symbol in visa approved status

In this article, you find information about:

  • Ways to apply for H1B Visa
  • Detailed COS H1B process guide
  • H1B through COS: understanding approval and denial

Change of status, commonly referred to as COS, is a process that allows people with US visas to change their visa status while remaining in the US when their purpose of visiting the US changes. This option is available to most non-immigrant visa categories. For instance, if a student on an F-1 visa wished to continue their stay in the US and pursue a career in the chosen field, they could approach USCIS and apply for a Change of Status (COS).

Your sponsoring employer will apply for an H1B Change of Status or H1B Consular Processing based on the place you are living at the moment of filing and preference. Let's take a deep-dive look at what these processes involve and what it means to get an approval or denial of your H1B COS application.

Obtaining the H1B: Consular Processing vs. Change of Status

The two options you have for obtaining the H1B are differentiated and detailed below:

1.Change of Status

Applying for H1B Visa using Change of Status (COS) allows an applicant to apply for a change of their existing status to H1B while remaining in the US. When you obtain an H1B visa through COS approval, you receive the I-94 along with it, detailing your visa class and issue and expiry dates of the allotted status.

In order to be eligible to apply for a COS, you will have to fulfill the following conditions:

  • Be present in the US on a non-immigrant visa at the time of application
  • Hold a legal visa status and maintain it throughout your stay.
  • No records of status violations
  • No records of crimes committed that would render your status ineligible.

2.Consular Processing

Obtaining an H1B from outside the US through consular processing will involve visiting a US Consulate office to have the H1B visa stamped into the passport. In this case, USCIS will not deliver the I-94 with the H1B approval notice.

H1B application through consular processing may be a long process that involves filing a DS-160, attending a visa interview at the Consulate, and obtaining a visa stamp on your passport.

Change of Status Application: A Detailed Look

Let's discuss the COS application process in detail. The steps involved are:

1. Submitting the application - Form I-539
Form I-539 is the form to be filled in and submitted for applying for COS.

2. Document filing
You will need to include documents as proof that your visa status was maintained and that you will continue to do so with the new status. A copy of your current I-94 will be sufficient as evidence.

3. Additional documentation
Any additional documentation like records of your OPT status, payment slips, etc., will also be included here.

Once the USCIS receives your complete COS request file, you can expect the following developments:

  • You will receive a Notice of Receipt confirming that your file has been submitted.
  • You may receive a notice for Biometrics services if required.
  • There may be a notice for attending an interview if needed.
  • You will then receive the final decision.

Submitting the H1B application as COS will require that you provide details of the I-94 that you have been maintaining during your stay in the US. If your COS application for H1B has been approved, the USCIS will update the changed visa status in the I-94 and attach it to the Approval Notice they send you.

Processing time for COS will vary depending on how you have filed it. If the H1B I-129 Form was filed side-by-side, processing results might be declared within a few weeks to a few months. If the COS was filed independently, you might face a one-year waiting period.

It is strongly advised that you do not travel outside the US while the COS is being processed. Any travel abroad during this time will render your application void, and it will be considered 'abandoned.'

Also Read: All About F1 to H1B Change of Status Tax Filing

H1B to F1 Change of Status Denied or Approved - Next Steps

COS Approval

Depending on the type of application you have filed, your H1B Visa petition can be approved with Change of Status, or without. You may fall into one of the following categories of COS approval, depending on your current situation:

If you're already in the US,

  • H1B Approved with COS (F-1, H-1, L-1, L-2, or other visas changed to H-1B), You can legally start employment on or after the date on the approval notice.
  • H1B Approved Change of Status Denied (this happens rarely)
    On rare occasions, applicants living in the US will receive an H1B approved but change of status denied notice. They will have to obtain an H-1B stamp from a US consulate office outside the US, usually from the home country, and re-enter within ten days before the approval date.

If you've applied for Consular Processing:

H1B Approved

Once the H1B petition is approved, you will have to obtain an H1B stamp on your passport following an interview with a consulate officer. Once you clear the interview and obtain the stamp, you will be approved for entry into the US.

COS Denial

In case USCIS denies the H1B COS, your visa status in the US will remain unchanged. You will receive a letter detailing the reason for denial and the notice of denial from the USCIS. The possibility of appeal is usually low. You are strongly advised to seek advice from an immigration attorney to determine your next steps.

Receiving a denial notice may not always mean you will have to leave the US immediately. It depends on the validity of your I-94. You are authorized to stay in the US as long as your I-94 is current. In case your COS is pending and your I-94 expires, you can legally wait in the US for the final decision about your COS. On approval, your I-94 will reflect the new expiry date. If you receive a denial and your I-94 is expired, you will have to leave the US immediately.

In conclusion

H1B COS and Consular processing can be complex without the proper guidance. Visit TechFetch H1B to get more information on applying for H1B change of status. Proper filing will heighten your chances of receiving an approval notice.

**Disclaimer:  You will find updated information on immigration laws on the USCIS website. Please refer to the website for the latest information.

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Article by Techfetch H1B team

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