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The H1B Change of Status Fact-sheets
May 5, 2022
5 mins
A close-up view of the USA visa in a passport.

In this mini-guide, you will read about:

  • What is change of status
  • Eligiblity requirements for change of status
  • Process of applying for change of status

In preparation for learning more about the H-1B Change of Status, we recommend spending a little time learning about the H1B visa as well.

A nonimmigrant's stay in the US is determined by their purpose of stay, which is reflected in their visa status. Any change in the nonimmigrant's situation or intention must immediately be reflected in the visa status through the change of status procedure. For example, a student resides in the US on an F-1 visa, which is a student visa. If the student wishes to continue his/her stay in the US for employment or has gained employment with an employer willing to sponsor their stay, their visa has to change from the F-1 to an employment-based visa like the H1B.

How Is Change of Status Defined?

Change of Status, commonly referred to as COS, is when a nonimmigrant applies with the USCIS to have their visa status changed without leaving the country.

Your purpose for residing in the US on a nonimmigrant temporary visa could be business, employment, education, or pleasure. Your purpose of the visit will be reflected in the visa and will be stamped into your passport by the US official. When your situation or purpose changes during your stay, you or your sponsoring employer will have to file for a status change with the USCIS immediately.

The COS option is not available for all types of visas. Some visa holders like those of the Visa Waiver program, C visa or transit visa, or the Crew Member D visa cannot expect to apply for a change in visa status.

Eligibility Requirements for Applying for a Change of Visa Status

In most circumstances, you may apply to change your non-immigrant status under the following conditions:

  • You are currently present in the United States
  • You hold a legal and current visa status in the US
  • There is no record of status violations connected to your name
  • There are no crimes on your record that would render you ineligible for any legal dealings.

Effecting a Change of Status: The Basics

You have two options to consider when you apply for a change in visa status:

Option 1: Change of Status while remaining in the US
You can file the I-539 Form with the USCIS for a change in visa status while remaining in the USA.

Option 2: Change of Status through exit and re-entry
With this option, you will be required to travel outside the US, obtain a visa stamp and clarify your visa status on re-enter like a first-time nonimmigrant.

If you wish to go with Option 1, you or your employer must follow the appropriate filing procedure and send your petition with the correct form to the USCIS. This must be carried out before your original visa validity expires. Visa status and expiry date can be found in the I-94 Record of Arrival and Departure stamped on your visa.

Here are some important points to note about changing visa status:

  • Leaving the US while the change of visa status procedure is ongoing is strongly discouraged. If you leave mid-process, your application will be considered void because of 'abandonment.'
  • Certain nonimmigrants, like those under the W/B or W/T visa waiver program, will not be able to apply for a change in their visa status while remaining in the US. They will have to use Option 2 - leave the US and return on a new visa.

Also Read: COS approved/Denied

An in-depth Look Into Filing a Change of Status Petition

You will need to confirm whether the COS applies to your visa status before applying for a change of status application . Form I-539 - Application for changing or extending the nonimmigrant status - can be conducted via paper or online.

Filing for COS using the paper application

In filing a paper-based application, follow these steps in order:

  • Carefully read instructions on Form I-539
  • Fill in all required details carefully and sign File I-539
  • Pay all required fees, including the Biometrics fee, or any other applicable fees
  • Include all the required documentation as supporting evidence to strengthen your case.

Your filing documents should be mailed, along with your application fee, to the USCIS center, which has geographical jurisdiction in the area where you are now staying or working.

Filing for COS using the online method

Here are the steps to follow for filing COS online:

  • Electronically file the form and submit, along with the required fee.
  • USCIS will send notices about updates electronically.
  • You will be able to view updates on your case and view a comprehensive history of your case online.
  • Through the online mode, you will have a secure and direct communication link with the USCIS.
  • You can even respond to evidence requests electronically if you receive any.

Important Info You Need About Change of Status

H1B change of status timeline

Change of Status involves a typical three to five-month processing time. For expedited processing, you can opt for change of status premium processing, which will give you a result in fifteen days, for an additional fee.

After Filing COS
You can expect the following responses once the USCIS receives your I-539 request:

  • Confirmation of receiving application through notice of receipt
  • Notice for registering Biometrics, if required
  • Summons for an interview, if required
  • Five-to-six-month timeline once all documentation and submission are completed
  • Issuance of a Notice of Approval, if everything falls into place

If your application to change your non-immigrant status is denied, the USCIS issues a letter detailing the reason for denial. You can file a motion to reconsider your case or re-open it with the same office with this information. You will not be able to appeal to a higher course.

Filing COS for dependents
Dependents like spouses and children can be included in your I-539 petition on two conditions:

  • Your children and spouse are on nonimmigrant status that is non-derivative
  • All of you are in the same nonimmigrant visa category

Delay in applying for COS

Time is of the essence in any immigration filing process, but it is even more so when you have to file for a change of status and get approval before your original visa expires, act on immediately. In case you are late in your application, you will need to prove that:

  • There were circumstances beyond your control that led to the delay.
  • The delay was within a reasonable period
  • Your legal status remains, and there is no record of actions that may amount to a violation of your status in the US.
  • There are no motions in force to remove you from the country.

The conclusion

Change of Status is the ideal step to take when you wish to extend your stay in the US. The USCIS recommends that early filing will always prove beneficial for the applicant. Finally, stay in the country until the change in status is approved to avoid any unwanted situations.

If you are starting on your journey to filing your H-1B, you will need genuine help to get you started right. Visit TechFetch H1B website, the repository of H1B information, for any queries regarding H1B.

**Disclaimer: Immigration laws change periodically. Please refer to the USCIS official website for all the latest updates.**

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Article by Techfetch H1B team

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