Change-of-Status-COS-FAQs

Change of Status (COS) – F1, H1B, L1, H4, L2, F2 – FAQs – All you need to Know !

by Saurabh · 938 comments

What is Change of Status?
When an immigrant enters US, that alien is given a visa category. This is mentioned in the I-94 that is issued at PoE (Port of Entry). Immigration laws allow the alien to move from one visa category to another (say from H-4 to H-1 or F-1 to H-1 or L-1 to H-1 etc), w/o needing to go out of the country and getting the visa stamped for the new category. This process is called Change of Status.

What is the process for COS?
When applying for COS, following steps happen:
1. The applicant submits COS form (I-539).
2. Additional documents need to be submitted to show that the alien has been maintaining valid status in US, and will be able to maintain status in the new visa category. To demonstrate this, one needs to submit:
- copy of current I-94
- copy of payslips and W2s (when current visa category is H-1 or L-1 or F-1 OPT)
- copy of spouse’s payslips and W2s (when current visa category is H-4 or L-2)
- employment documents (when new visa category is H-1 or L-1)
- spouse’s employment documents (when new visa category is H-4 or L-2)

How long does COS take to process?
If just the COS is filed, then it takes around 2 months to process. If the COS is filed along w/ I-129, then it can take 2-6 months to process. The actual processing times are available at USCIS website.

Can I expedite 221g processing?
If just the COS is filed, then it cannot be expedited. If it is filed along w/ I-129, then it can be upgraded to premium processing. In this case, it will be adjudicated within 15 calendar days.

What happens once COS is approved?
If USCIS approves the COS, then they would issue approved 797 along w/ an attached I-94. The attached I-94 will have the start and end date of the new visa category along w/ annotation for the new visa category. The alien will be on the new visa category from the start date mentioned in the approval notice, and is supposed to start maintaining the new status from that date. For example, if COS is applied from L-1 to H-1, then L-1 status needs to be maintained until COS approval date, and H-1 status needs to be maintained thereafter.

What happens once COS is denied?
If USCIS denies the COS, then alien would continue to remain on your current visa category and need to maintain the same.

Is no stamping required w/ COS?
When COS is approved, the alien’s visa category changes immediately. No need to immediately go for stamping. However, when the alien leaves the US next and wants to return to US, then they will have to go for the visa stamping of that visa category.

[As I get more information on COS and based on most commonly asked questions in the blog, I will continue to update this post]

{ 938 comments… read them below or add one }

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GatorFan March 10, 2012 at 7:19 pm

Hello all. Here is my question. I am H1B holder and was laid off in September 22, 2011. My last paystub was in sept 30. I have been looking for a job ever since, and found one in late Feb, 2012. They filed to the USCIS but the answer was that they need proof that I was working until the date the case was filed. Obviously this was not possible since I stopped working in september 2011. Because of this I would have to go back to my country with the offer letter from the company and apply for a new H1B visa, and re start the application. The company has decided that they don’t want to start all over again (time constrains, lawyer fees, etc) so they decided not to give me the job.

I am not quite sure what to do now. I plan to file for F-2 (my wife is F-1 under OPT) but I’m not sure if this is going to be doable or not. Any prompt response is appreciated.

Reply

Saurabh March 11, 2012 at 11:37 am

GatorFan,
Even when going for F-2, you will have to file COS from H-1 to F-2, which could be denied as you didn’t maintain status by getting paid b/w Sep and now. IMO, you should leave US ASAP and then go for F-2 visa stamping at a consulate. However, that also carries a big risk of getting denied as you overstayed in US since you were laid off.

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Neha March 10, 2012 at 1:16 pm

Hi,

I have got my H1b visa stamped through a reputed employer :) My husband’s petition (filed by a consultant-ish company) on the other hand, was given a 221(g) blue form after appearing for the interview in October, 2011. I honestly feel we cannot rely on his H1b to get stamped , since there is a consultant involved plus it’s already been 4 months since the USCIS received the requested documents
My husband intends to travel with me on H4 in the meantime. What options does he have to acquire an H1b if he already has a valid I-797 ? I am keen to take up ANY possible action :)
Or , do you advise we should hang on and wait for the 221(g) processing to get cleared(hopefully!!) ?

Any advise is much appreciated :) Thanks.

Reply

Saurabh March 11, 2012 at 1:19 am

Neha,
He can go for H-4 visa stamping. I have seen few recent cases where this went successful. Once he is in US, he can apply for H-4 to H-1 COS along w/ H-1 transfer. Once approved, he can start working on H-1 again for the new employer.

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Sidd March 9, 2012 at 11:33 pm

Hi Saurabh,
I am currently on H1-B visa and My girlfriend wants to visit me in US, I plan to call her on B-2 visa(visitor visa). When she is here, can I apply for her H1-B visa from here itself(thru some job consultant). If the Visa is approved, from when she’d be eligible to work on her own visa?
Also, is there any legal constraints to follow this process, will she’d be denied any job/employment since she is transferring from B-2 to H1B?

Sidd

Reply

Saurabh March 11, 2012 at 12:59 am

Sidd,
There are few things you need to watch out for:
1. When going this route USCIS can question the intent of using B-1/2 visa to enter US and then moving to H-1. This is highly possible when H-1 is filed within 30-60 days of entering US, and are less probable when applying after staying in US on B-1 for at least 90 days.
2. The other thing is that I-94 may be issued for a duration that doesn’t get her covered till Oct 1 (which is earliest start date for H-1). In this case B-1 extension needs to be filed, which may run into issues.

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SV March 9, 2012 at 1:22 pm

Hi Saurabh,
I am working with Company A on L1B visa which is valid till Jul 2013 .
Company B Filed H1B for me in Sep 2011 and then it got approved in DEC 2011.
I could not join that client because I got RFE in Sep 2011 and the client needed the person immediately.They hired someone else and closed the position. But I got my H1B approved in Dec 2011.
So i decided to work with Company A and i am still working for Company A and besides that i have approved H1B.

If i will go back to home country and come back in with L1 visa which is valid till 2013 , will there be any issue at airport?

Reply

Saurabh March 10, 2012 at 11:49 pm

SV,
See my response to your other post w/ similar question.

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dynamad March 8, 2012 at 9:18 pm

I am on H1 which is valid till 2014, I entered US in Nov 2011. I work for employer A and have an offer from employer B. My questions are

1. Do I need to ask my new employer to transfer the dependent visas too ?

2. I agreed to give my notice period after I receive a reciept number from USCIS, is this fine or am I taking a risk before the petition approval? What if the petition is denied after I start working for employer B

Reply

Saurabh March 9, 2012 at 6:58 pm

dynamad,
1. If you want your dependents’ I-94 to be extended just like yours, then they need to file I-539 for them as well.
2. The only risk is that in case your transfer is denied, you will have nowhere to go as you would have resigned from old employer.

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Bunny March 8, 2012 at 7:18 pm

Hi Saurabh,
I have a question related to COS.
Initially I entered on H1 with employer A and later had to convert to L1 with the same employer. Now I want to apply for COS from L1 to H1 with employerB under quota exemption. If COS gets rejected, can I continue to work on L1?
Or Will I be out of status?
If I can stay,can I apply for COS again with any other employer C? If so after how many days? Please advice.

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Saurabh March 9, 2012 at 6:53 pm

Bunny,
If your COS gets denied, you can continue working on L-1 as long as it remains valid and hasn’t expired. Yes, you can apply COS to C in future. There is no wait time.

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Bunny March 9, 2012 at 7:32 pm

Thanks Saurabh.

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Prunid March 7, 2012 at 3:28 pm

Hi Saurabh,
I am planning to bring my parents from April 25 till August 8 2012. Assuming if they enter on April 25 their I-94 will be another 6 months till October 25, 2012. But they would be leaving by August 8. When can they re-enter?? Can they come back on Feb 8, 2013 [exactly after 6 months from date of leaving US] or they can come only on April 25, 2013 [exactly after 6 months from previous I-94 expiry date] or can they re-enter anytime? Please let me know..

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Saurabh March 7, 2012 at 7:19 pm

Prunid,
It is recommended that one doesn’t stay for more than 6 months on B-1/2 in past 365 days. They would be staying close to 2.5 months during their first visit. How long do they want to stay during the 2nd visit? If it’s less than 3.5 months (but too close to the line and getting flagged) then they can enter next year, else it would be better to re-enter close to end of 2013.

Does that clarify?

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Prunid March 8, 2012 at 6:29 am

Sorry, I would put my question in a different way.
First entry – April 25, 2012
First departure – August 8, 2012

Second planned entry – November 2012
Second departure – ??

Does the second departure be the difference of 6 months and first stay in months [here 6 - 3.5 = 2.5 months??]

But in the first place, can they enter in November 2012, having departed only in August 2012. Please suggest the best timeline as I would definitely need to bring them by year end but also planning them for a short stay during summer so that they can get a vacation in summer..

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Saurabh March 8, 2012 at 10:53 am

Prunid,
Yes, it should be such that sum total is less than 6 months. They can be asked at PoE why they are returning back so quickly, and they will have to provide a reasonable response. As they wouldn’t have stayed close to 6 months, it may still be ok to return in Nov. It will be PoE officer’s discretion what I-94 duration to provide during their 2nd visit.

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AK March 7, 2012 at 2:35 pm

Hi,
The scenario is that my L1 is getting expired in Apr 2012 and my employer is applying for a H1 in 2012 cap based on my i94 which is valid until 2013.
The case that my employer has opened in for a new H1 and not COS. Now if my H1 gets approved in July 2012 do I have to leave US immediately since my L1 is now invalid or can I continue to stay based on my I94, go to India for stamping in Sep end and then come back to US in Oct 2012. Also, I assume that if its a new case I will have to go back to India for stamping what ever be the case, correct.

Thanks,
AK

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Saurabh March 7, 2012 at 7:10 pm

AK,
If your L-1 is a blanket petition then you can continue to stay and work until your I-94 expiration date.

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AK March 7, 2012 at 7:29 pm

Yes, the current visa is L1B but it is expiring next month. even then is it fine to stay on my I94 after my H1 is approved say in Jul 2012.

Thanks

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Saurabh March 7, 2012 at 7:41 pm

AK,
But is it a blanket petition or individual?

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AK March 7, 2012 at 8:01 pm

sorry.. I meant L1B blanket.. forgot to mention..

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Saurabh March 7, 2012 at 10:27 pm

AK,
In that case my original answer is still valid.

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Vipul March 7, 2012 at 9:21 am

Hi,

I have been following your site for a year and it’s great source of information. Thanks for all you do.

My situation:

I have been in US on L1B for 3+ years with employer X. Last year, My employer (x) had applied for L1 extension. Today it was approved.

Similary, my employer(x) preparing for H1B visa (not COS) in april-2012.

Query:
1) If my H1B petition approved with employer x and COS is not applied.
Can any other company use this approved petition to apply for my H1-COS?

2) Extending (#1), I may or may not get I-797, Is it fine if I don’t have I-797. Does it affect COS from another employer?

Thanks,
Vipul

Reply

Saurabh March 7, 2012 at 6:50 pm

Vipul,
1. Yes the 2nd employer can file H-1 transfer w/ COS
2. For H-1 transfer it’s best to have at least copy of 797. If not, then you can try to do the transfer just w/ the receipt number.

Reply

Vipul March 7, 2012 at 10:01 pm

Thanks Saurabh.

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Vipul March 13, 2012 at 1:27 am

Hi Saurabh,

couple of other questions:-

1) in case H1B approved with out COS. And later we apply for COS; how much it will cost?

2) I got my L1 approval should I push my employer for H1 with COS?

-Vipul

-Vipul

Reply

Saurabh March 13, 2012 at 10:28 am

Vipul,
1. I don’t remember exact cost, but it would be around 200-300.
2. You can ask them. What’s their reason of not filing it w/ COS?

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Vipul March 13, 2012 at 11:37 am

1) I assume if another employer does COS with H1b transfer it will be same.

2) Till date, we did not receive L1 petition approval. Reason might be I can leave the company..

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Saurabh March 14, 2012 at 12:33 am

Vipul,
1. Yes, but H-1 transfer would have it’s own separate cost.
2. Do you mean employer has received it but has decided not to share w/ you?

Vipul June 6, 2012 at 5:50 pm

Hi Saurabh,

You replied following :-

Saurabh March 14, 2012 at 12:33 am
Vipul,
1. Yes, but H-1 transfer would have it’s own separate cost.
2. Do you mean employer has received it but has decided not to share w/ you?

[Vipul]
Yes; seems my employer is large service company and usually it won’t update I797 on intranet for H1b..

How do I overcome that situation?

Saurabh June 6, 2012 at 6:59 pm

Vipul,
Only employer can provide you w/ the receipt number and/or copy.

anonymous March 7, 2012 at 12:33 am

Hello,
This might be a little irrelevant, but I have a question regarding my scenario which is explained here. I am currently working with a company on my OPT extenion which is valid till Feb 2013 (29 months of OPT end on this date). I have to go to India for my marriage somewhere around June 28th 2012. Although my F1 expires on June 24th 2012 . My would-be is on H1. Should I try extending my F1 (I don’t know if I am allowed to do such a thing). Another option is to file H4. But I am just trying to figure out the best possible way. Also I am not too sure if H4 would be that safe too. Because I came here studied here worked here and again want to come back to US. How do I show non-immigration intent. Your comments and suggestions are much appreciated. Thank you

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P March 7, 2012 at 11:38 pm

Can someone please answer my question or put your opinion on it please.
Thank you

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Amr March 6, 2012 at 2:19 pm

Hello,

If I apply for change of status (from F1/OPT to H1-B), and i wanted to leave the country AFTER my H1-B was granted, do I really have to go back to my home country to the US embassy there?

If so, how long does that process take? What is the process like? I only get 2 weeks off per year and hate to get crushed by the waiting time these embassies usually take.

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Saurabh March 7, 2012 at 1:56 pm

Amr,
When is your OPT expiring? Once your H-1 is approved, you can travel out of US and then return on F-1/OPT and then be on H-1 from Oct 1. This may not work if your OPT has expired by the time you plan to return or if your H-1 is not approved (in which case your status will not be H-1 from Oct 1).

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Amr March 7, 2012 at 2:23 pm

My OPT expires in December and my passport in November.

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Saurabh March 7, 2012 at 7:11 pm

Amr,
So you can go out of US after your H-1 has been approved, and then return prior to Oct 2012. You can then be on H-1 from Oct 1. Carry OPT employment related documents when entering US – payslips, employment letter, I-20 card endorsed for travel etc.

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Donna March 6, 2012 at 11:57 am

hi, i came in the US with an I-Visa. can i apply for a social security number or driver’s license? thanks

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Adithi March 5, 2012 at 11:57 pm

I would like to know what does the visa status CERTIFIED-WITHDRAWN mean? Who withdraws the H1 status and during what circumstance would they withdraw the visa

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Saurabh March 6, 2012 at 1:57 am

Adithi,
Employer can withdraw it, but am not sure if that is the only reason when it would be certified-withdrawn.

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Dhan March 5, 2012 at 9:40 am

Hi,

Thanks for this post. Can you please tell if Change of Status from L1B to H1 be filed and approved at anytime or H1B will always become active starting Oct of given year and it comes under yearly H1B quota?

Thanks.

Reply

Saurabh March 5, 2012 at 11:43 am

Dhan,
Yes it will be subject to quota if you didn’t have any H-1 in the past. The earliest date for it to become active is Oct 1, but it also depends upon what your employer requests and when USCIS processes it. So let’s say employer files it on June 1, w/ requested start date of Dec 1, in which case it will be approved for Dec 1. In another example, it is filed for Oct 1 start date, but USCIS doesn’t complete processing by Nov 1, and then it becomes effective for Nov 1.

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Dhan March 5, 2012 at 12:00 pm

Thanks Saurabh

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Nikita March 3, 2012 at 1:07 pm

Hi ,
My case got approved on 2nd march
filled on 18 oct.
Center:Vermont
Thanks saurabh for your advise and all for updates.

Reply

Saurabh March 3, 2012 at 1:16 pm

Congrats Nikita!

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Nikita March 2, 2012 at 10:00 am

Hi Saurabh,

Just want to check with you on the change of profiles while on H1. If currently you are on a HR sort of a role, can you move into a IT based profile after doing a course and having an IT education. Can i change the status with the current HR role on my H1. Pls advise.

Thank you,
Nikita

Reply

Saurabh March 2, 2012 at 10:04 pm

Nikita,
This would require new LCA and I-129 to be filed as job duties will be changing. Your employer will have to submit information on how you qualify for the IT position. I don’t know what courses you have done, but it would depend upon how satisfied USCIS is w/ the document submission.

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SV March 1, 2012 at 2:31 pm

Hi Saurabh,
I am working with Company A on L1B visa which is valid till Jul 2013 .
Company B Filed H1B for me in Sep 2011 and then it got approved in DEC 2011.
I could not join that client because I got RFE in Sep 2011 and the client needed the person immediately.They hired someone else and closed the position. But I got my H1B approved in Dec 2011.
So i decided to work with Company A and i am still working for Company A and besides that i have approved H1B.
Can i transfer approved H1B with Company C with my L1B Paystubs.
Or do they need to file new H1B ?
What to do if i dont have H1B Paystubs . I have L1B current Paystubs ?

Reply

Saurabh March 1, 2012 at 4:44 pm

SV,
Your status became H-1 in Dec 2011 as it was approved w/ COS. You should have been working for B on H-1 since the approval date and not on L-1. I suggest talking to an immigration lawyer on how to proceed further.

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SV March 1, 2012 at 6:18 pm

But As per lawyer , As long as your Payroll not generating through H1B employer , you are good to go with L1B employer . Is this correct ?

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Saurabh March 2, 2012 at 12:43 am

SV,
I don’t think that is correct. Is this attorney belonging to H-1 employer? I would suggest contacting an independent lawyer to get consultation on this.

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SV March 8, 2012 at 10:16 pm

Hi Saurabh ,

Sorry for late reply .
Yes this attorney belonging to H1B employer .
If i will go out from this country now and come back on L1B again.
Will there be any issue on airport . My L1B is valid till 2013 July?
Also , once i come back from home country ,will i be the part of H1B Exempt .

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Saurabh March 10, 2012 at 10:00 pm

SV,
Usually they don’t go into too many background details at PoE. So the officer may not ask you whether you were working on H-1 or L-1, and once you enter you will be on L-1 and back in status. But, there is still a chance that he can ask you why you were not working on H-1 when your COS to H-1 had been approved.

In future, you can go for cap-exempt H-1, but USCIS may ask about this period where your COS to H-1 was approved, but you were still working on L-1.

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SV March 11, 2012 at 9:49 am

Thanks for your reply .

If i will start working with my current H1B employer .
Will there be any problem in filing GC .

What is the best option i have so that everything will correct.

Saurabh March 11, 2012 at 12:28 pm

SV,
It may or may not cause issue during GC processing. It is not possible to provide an accurate answer and will depend upon the adjudicating officer.

sbwars March 1, 2012 at 10:29 am

Hi Guys,

I need some more information regarding the H1 transfer process.
I have recently joined a company in US. I want to get my H1 transferred to a new company as this company is paying me very less. I am married and my wife has her H4 stamped.
She will be joining me here in US next month. After she comes to US, i will file for H1 transfer. Me and my wife have to travel to India for a personal commitment (which we cant avoid), in the last week of October. Now based on this i have a few questions :
1. If we travel to India in october, do we need to get a new stamping after H1B transfer?
2, I have a stamping done for both me and my wife , which doesnt expire till November 2014. Taking this into consideration, If i do an H1 transfer, where in both me and my wife will have valid I-94s, would i need to get a new stamping done whenever i travel to India?

Any help will be much appreciated. Please let me know if my case statement sounds ambiguous and needs clarification.

Thanks !!
Reply With Quote

Reply

Saurabh March 1, 2012 at 10:59 am

Sbwars,
No stamping is required as long as the previous visa stamp is still valid. So in your case, current stamp is valid till 2014, and no stamping is required when travelling in Oct 2012.

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Nikita February 29, 2012 at 11:17 pm

Hi Saurabh,

I have been living in the US since 2004 and my husband and i are yet to get our green card. I came into the country on L2 and worked till around 2008 and switched to H1 in 2009. In 2010, i had a baby and had to move to H4. Now my questions are
1. If my employer is ok, can i move to H1 back with the same employer ?
2. Can i transfer the H1 to another employer who have very few people and very small revenue, but are intereted in me working for them?
3. Also, is it required for me to step out of the country to start working on any visas, simply put as, will my time in the U.S. as L-2 spouse count against the six years I’m allowed in H-1B temporary professional working status?

Apprecaite your comments on the above, since these are going to help me make important decisions.

Thank you,
Nikita

Reply

Saurabh February 29, 2012 at 11:34 pm

Nikita,
1. Yes, the employer can file for COS from H-4 to H-1 and you can start working from COS approval date
2. Yes, a different employer can file for H-1 transfer and COS from H-4 to H-1.
3. Time spent on L-1 and H-1 counts, but time spent on L-2 doesn’t count towards the 6 year clock.

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Nikita February 29, 2012 at 11:41 pm

Thank you so much for that quick response.

Just one question more. Do i have to wait till October to start working or can i start once I get the approval.

You are doing an awesome job Saurabh. :)

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Saurabh March 1, 2012 at 10:16 am

Nikita,
You don’t need to wait for Oct to start working as the new petition will be a cap-exempt petition. You can start working from the date COS gets approved.

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Alex Jones February 29, 2012 at 8:03 pm

Hi Saurabh,

2 Questions

1. I’m currently on an L1 visa which is about to expire. I also have a B1 visa. Is it possible to do a change of status from L1 to B1 while in the US ?

2. I heard that if somebody had an H1 visa in the last 5 years then that person is not subject to the yearly cap/quota when that person does a change of status from H4/L2 to H1. Is this true ?

Thanks,
Alex

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Alex Jones February 29, 2012 at 10:31 pm

If the answer to the second question is Yes, then how long does it take to get the change of status done ?

Here is my case – I’m currently on an L1 visa. I was laid off and my last date in the US on legal status is 15th of March (including the 30 day grace period). My wife is on the L2 status. She currently holds a job and is working on her EAD. If her employer files for a change of status on 1st March then can she continue staying in the country if the change of status process goes beyond 3/15 ? Can she continue working for the same employer beyond 3/15 ?

Can I apply for a change of status to H4 along with her change of status to H1 ? If not, When can I apply for a H4 ?

Assuming she gets the H1 done and I get the H4 when I apply for a change of status from H4 to H1 ?

Reply

Saurabh February 29, 2012 at 11:25 pm

Alex Jones,
Did your wife hold H-1 visa in the past?

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Alex Jones February 29, 2012 at 11:32 pm

Yes she was on a H1 visa from Jan 2007 to Dec 2009. She also holds an H1 extension petition which was approved in September 2009 and its valid from September 2009 to September 2012. However she has quit the employer through which she had got that petition and had to return that petition. In Dec 2009 she came back to India and then returned to the US as a L2 along with me in Feb 2011

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Saurabh February 29, 2012 at 11:37 pm

Alex Jones,
Then she should file L-2 to H-1 COS while you two are still in status. Once her H-1 COS gets approved, she can start working on H-1 for the employer. You will also have to file your COS from L-1 to H-4 along w/ her. Once your H-4 gets approved, an employer can file for H-1 for you along w/ COS from H-4 to H-1. The earliest work start date for you to work on H-1 is Oct 1. Also, your wife’s employer should go for premium processing to get a quicker resolution as you have already been laid off on L-1 and it’s best to get back into legal status as soon as possible.

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Alex Jones February 29, 2012 at 11:42 pm

Saurabh – Really appreciate your prompt responses!

Some Follow up questions

1. Can you confirm that the premium processing time is 15 calendar days and not 15 working days ? If Yes, Is it possible to get the result in 7 calendar days also ?

2. My last day on payroll was 2/15 but since the 30 day grace period is ending on 16th March, We are planning to return to India only on 3/15. My wife has been working till date and is planning to continue till 3/15. Would that be a problem ?

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Alex Jones February 29, 2012 at 11:53 pm

Few more questions

1. Since my wife was already on H1 for 3 years (2007-2009) earlier if her H1 COS gets approved will she have a fresh quota of 6 years or just 3 more years ?

2. If for some reason the COS is approved after 3/15 say on 3/21. Would we have to return to India on 3/16 ? If Yes, would she have to go for stamping before she can return on 3/21 ?

Saurabh March 1, 2012 at 10:18 am

Alex Jones,
1. Yes, it is 15 calendar days and includes Sa, Su and holidays
2. I don’t know if it would be a problem and would depend upon how the case is presented and USCIS officer’s discretion.

1. She would be eligible for 3 years of H-1 as she has already used 3 years of H-1 in US
2. I think you can wait on the basis pending COS application even after 3/15. However, check w/ an attorney.

Alex Jones March 14, 2012 at 9:07 am

Saurabh

If the cap exempt H-1B petition for my wife gets approved can she do a H1 transfer to a new employer in the future ?

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Alex Jones March 14, 2012 at 10:12 am

2. Since my wife’s first petition was approved from FY 2007 to FY 2009 and subsequently her H-1B extension was also approved for the period FY 2010 to FY 2012 but she returned to India in Dec 2009. Will that negatively effect her H1-B cap exempt petition and COS from L2 to H-1B now ?

Saurabh March 14, 2012 at 9:52 pm

Alex Jones,
1. Yes, H-1 transfer can be done in future
2. No it won’t impact her COS as long as she has been maintaining legal status all along.

Saurabh February 29, 2012 at 11:08 pm

Alex Jones,
1. Yes, you can as long as you have valid reasons to move to B-1 visa
2. Yes, if the person previously had H-1 visa, then an employer can file cap-exempt petition and not be subject to the cap.

Reply

Alex Jones March 1, 2012 at 3:45 pm

Saurabh,

1. Can you confirm that if an L1 is laid off he has 30 days to leave the country after his last date of employment ? If Yes, then why is this link saying that there is no grace period – USCIS Link

2. If my H4 is approved and I get an H1 and start working from Oct 1st, 2012 will the time that I spent working on the L1 from Feb 2011 to Feb 2012 be counted towards the 6 year quota ?

3. When the employer applies for a COS for my wife to a H1 will he be subject to the new rules mentioned here – redbus2us article

Reply

Saurabh March 2, 2012 at 12:01 am

Ales Jones,
1. Although that article is for H-1, but in general a person is supposed to leave US soon after they are laid off. They can stay for few days to wrap-up things, sell stuff etc, but anything more than that and they should move to another visa status like B-1. So I would suggest taking that 30 day grace period for granted. When was your last day w/ the employer?
2. Yes, time spent on L-1 and H-1 is counted towards the 6 year limit
3. Yes, she would be
4. Yes, you will have to go for H-4 stamping. Your H-4 stamping may get rejected or refused based on your wife’s H-1 employment and your prior status in US.

Reply

Alex Jones March 2, 2012 at 7:23 pm

Thanks Saurabh.

My last day with the employer was 2/15 however on my pay stub the last date is mentioned as 2/29 (which is actually an error). So which date would the USCIS be considering to determine the 30 day grace period ?

Reply

Alex Jones March 2, 2012 at 7:34 pm

2. If the USCIS considers the 30 day grace period from 2/15 then our last date on current status would be 3/15. Now if we apply for a COS I understand that we can stay in the US until we get to know the status of the application. My question is if for some reason the COS process takes time beyond 3/15 can my wife continue to work beyond that even if she holds a L2 EAD ?

Reply

Saurabh March 2, 2012 at 11:06 pm

Alex Jones,
I think 2/29 might work, but not sure.

I would suggest talking to an immigration lawyer about your other concern as you have already been laid off, and it’s best to get a professional legal advice when you are so close to cut-off dates.

Reply

Alex Jones March 5, 2012 at 9:10 pm

Saurabh,

With respect to point 1 above, Once the L1 is laid off can the L2 continue to work as long as the L1 is in the country given that the L2 possesses an EAD that is valid beyond the L1′ departure date ?

Reply

Saurabh March 6, 2012 at 1:48 am

Alex Jones,
In general, a dependent’s visa status is determined by the primary applicant’s status. So as long as you are in state, she is fine, but once you go out of status she is out of status even if her I-94 is still valid.

Reply

Alex Jones March 6, 2012 at 10:16 am

Saurabh,

My question was that can my wife work during the grace period of 30 days ?

Saurabh March 7, 2012 at 1:39 pm

Alex Jones,
If you are in valid status, then your wife will be in valid status and then she can continue to work. However, if this chain is broken, then she cannot work. You will have to check w/ an attorney if you are still in valid status or not as you are no longer employed on L-1.

Alex Jones March 14, 2012 at 10:13 am

Is time spent working on L2 EAD counted towards the H-1B six year quota ?

Reply

Saurabh March 14, 2012 at 9:59 pm

ALex Jones,
Time spent on L-2 doesn’t get counted.

Reply

Alex Jones March 1, 2012 at 4:52 pm

Saurabh,

One more question

1. If my change of status from L1 to H4 is approved and then if I have to go to India, would I have to go for stamping before I can return ? If Yes, Is there is a possibility of H4 not getting stamped ?

Reply

NSK February 29, 2012 at 3:27 am

Hi,
I am writing from India, In2004 i had a H1B approved I797, i went and applied for a visa in local US consulate in india they refused my visa application and taken back the I797 from me and sealed as “application received” in my passport.
Now its been around 8 yrs and an other employer is ready to offer a H1B to me and also for my wife (she does not have any rejections with her). Since i have a rejection of H1B in earlier so is it good to apply for another H1B or first to apply only for my wife and H4 for me then later after entering to US can i go for COS. Pls suggest

Reply

Saurabh February 29, 2012 at 9:13 am

NSK,
That rejection was long time ago. I doubt if it would impact the outcome of your new H-1. However, both you and your wife’s H-1 will be subject to their own H-1 processing. USCIS and consulate will review the petitions and then make the determination whether you, employer and the offered position are eligible for H-1 or not.

Reply

Harish February 28, 2012 at 3:48 pm

Saurabh,
I have a 1 year H1B valid till Sept30 2012. Even though my project is permanent they couldn’t get a client letter stating it something like that and hence I landed up in a 1 year visa. How early can my company apply for renewal? Can I travel to India during the renewal period? Is there a possibility to get an extension for 3 years If we can get a client letter ?

Thanks

Reply

Saurabh February 28, 2012 at 10:08 pm

Harish,
Extension can be applied as early as 6 months. You can travel out of US while extension is pending, but then USCIS will abandon extension of stay i.e. I-94 extension. You will get the new I-94 at PoE based on the petition you show at that time. It can be approved for 3 years based on the submitted documents.

Reply

Harish February 28, 2012 at 10:29 pm

Thanks Saurabh, Can you please explain me more about abandoning of I94. Sorry for being ignorant about this.

Reply

Saurabh February 28, 2012 at 11:53 pm

Harish,
When the extension is filed, USCIS will extend two things – 797 and I-94. The former allows you to work, while the latter allows you to stay in US. For I-94 extension to get approved, you need to remain in US. If you leave US while it is under process, your current I-94 record will be closed and no I-94 extension would be provided.

Reply

Harish February 29, 2012 at 9:30 am

Thanks a lot Saurabh. This makes things clear. How long will it take for the renewal to be approved for both 797 and i94? Will this be faster than new H1B application ?

Thanks again for all your responses. Your support is very much appreciated !!

Harish

Reply

Saurabh February 29, 2012 at 9:37 am

Harish,
The general processing time is 2-6 months. Premium processing option is available where they would adjudicate it within 15 calendar days.

Reply

Harish March 2, 2012 at 8:58 am

Thank you very much Saurabh. I have talked to my employer and they said they are going to do a premium processing this time and also give more explanation to get a 3 year extension. I will send you an update. Really appreciate your assistance….

Harish

Harish June 4, 2012 at 12:42 pm

My company applied for an extension through premium processing and the extension got approved for 3 years this time. Thanks a lot for your assistance Saurabh. One more question would be , Do i have to go to India to get it stamped or can i visit Mexico or Canada and get it stamped ? Do we have that option?

Harish

Saurabh June 4, 2012 at 7:15 pm

Harish,
As this not a new H-1 and you are already in US on H-1 status, you can go to CA or MX for H-1 visa stamping. Even then make sure to have contingency plans.

Vipul February 28, 2012 at 3:16 pm

Hi Saurabh,

I would like to thank you for your quick and reliable replies to people like me.

I have been working on large MNC on L1B. Three years back same company applied for my H1B. The only detail I have is Receipt Number for visa filing. I don’t have any other detail.
On USCICS site, it shows that application has been approved.

Using this information, can I transfer my L1B to H1? If so How?
Is it possible to get it done by different employer?

Once again Thanks for your help.
-Vipul

Reply

Saurabh February 28, 2012 at 9:40 pm

Vipul,
As your H-1 is approved and you have the receipt number, it should be ok to go for L-1 to H-1 w/ H-1 transfer (cap-exempt). Off late I saw couple of RFEs where USCIS asked for copy of old 797, but one of them got approved w/o submitting the copy of 797 (don’t know what happened to the other case). So it’s worth a shot.

Reply

Vipul February 28, 2012 at 10:47 pm

Hi Saurabh,
Thanks for reply. Again I doubt validity of that receipt #. i.e. Is it mine or some elses.
1) How could I verify that? I hope you know this.
2) I assume we can do it from USA itself without any issues.

Thanks,
Vipul

Reply

Saurabh February 29, 2012 at 12:00 am

Vipul,
1. You cannot be sure unless you see the 797 copy which H-1 employer would have
2. Yes, COS and H-1 petition filing can be done while staying in US on L-1.

Reply

Shailesh February 27, 2012 at 2:59 pm

My wife is on H4 visa, we filed change of status for her to F1. When the visa was in process we had to go India for 10 days. She got an approval notice same day we left India to return to US.Her school says her F1 is approved but from what I understand we have to refile her change of status.Do we really need to refile change of status, if yes will the old approval help in processing the change of status faster. Her h4 expires on may 19, if we have to refile should we wait for h4 extension before filing change of status or file change of status right away.

Reply

Ravi February 27, 2012 at 3:08 pm

Hi Shailesh,
Did your wife enter US after F1 approval on H4, then yes your wife has to reapply change of status, otherwise she would be still considered as H4. Your wife can file change of status based on the newly approved F1, and i think you dont have to wait for H4 extension. By the way how long did it take for the change of status from H4 to F1 status.

Reply

Shailesh February 27, 2012 at 3:49 pm

Ravi,

Thanks a lot for your response.
She entered on H4, it took 7 months to get change of status.Delay was due to an RFE. I am afraid as if takes this much time again she will be out status.

Thanks
Shailesh

Reply

Raj February 27, 2012 at 5:25 pm

HI Shailesh,
Do you mind telling what was the RFE about, because my wife is also planning to change from H4 to F1, and also if you could tell me what all documents need to submitted.
Thanks
Raj.

Reply

Saurabh February 27, 2012 at 11:22 pm

Shailesh,
If she has entered on H-4 visa when returning to US, then her current status is H-4. She will have to file COS from H-4 to F-1 to go to F-1 status. She can start the school on H-4, and once her COS gets approved she can get enrolled on F-1.

Reply

Sudeshna February 24, 2012 at 11:46 pm

Hi,
I am in L1A from company A and filed my H1B from company B with COS. My H1B has approved. Now I not able to quit company A since I have to go back to India on Mar 2012 due to parent’s health issue.
1. Can I re-enter US with my L1A visa from company A since my visa is stamped till Feb 2013.
2. Since I have not joined company B yet (it is 1 month H1B has approved) will it be an issue at the port of entry if I enter with L1A visa.
3. Once H1B is approved how soon I need to resign company A? If I decide to stay with company A what should I do?
4. Am I out of status now since I have not joined company B (H1B sponsor)?

Reply

Saurabh February 25, 2012 at 1:33 am

Sudeshna,
1. Yes, as long as employer A still wants you to enter US and work on L-1A
2. May be or may be not. It will depend upon the PoE officer
3. If you are in US and your COS is approved, then you need to start working on H-1 from COS approval date. If you are out of US and H-1 gets approved, then there is no set timeframe
4. Yes, you are by not working for the employer B for which your COS has been approved.

Reply

Ravi February 23, 2012 at 10:40 am

Hi Saurabh,
I have got my H1b extension petition approved, now i am planning to travel to India and need to get visa stamped on return, my question is do my employer need to apply for I-824 (application for action on approved petition -to notify the consulate, port of entry…). or is it sufficient that i present the I797 and would be granted the visa provided all the documents in place.
Thanks,
Ravi

Reply

Saurabh February 23, 2012 at 11:51 am

Ravi,
There is no need to file I-824. Carrying the 797 should be sufficient.

Reply

Venkat V February 23, 2012 at 10:34 am

Hi Saurabh,

Thanks a lot for your prompt reply. You are doing a great service to all the people who are at the cross roads of their career paths.

I have one more query. My wife had a H1 approved in 2008 to start from 1 Oct 2008. She did not get stamping though. She worked till Nov 2008 for 2 months and came back to India. Now, she is in L2 visa working on EAD. My questions are

a) Does she qualify for Cap exemption and can she file for a fresh H1 now. Is there any website which gives guidelines on this.
b) Her H1 was from a Non profit organization in 2008. Does it make any difference.

Thanks.

Reply

Saurabh February 23, 2012 at 11:56 am

Venkat V,
1. Based on her previous petition, she can qualify for cap-exempt petition. She doesn’t need to go through the cap again.
2. Was her initial H-1 cap-exempt i.e. she didn’t have to go through the 65K cap?

Reply

Venkat V February 23, 2012 at 2:44 pm

Thanks Saurabh. The company through which she filed in 2008 was a Non profit organization. So, I believe she might have been cap exempted at that time. But now, she is working for a regular Profit oriented company. Does this make any difference.

If you have any links to articles, it will be great.

Thank you.

Reply

Saurabh February 23, 2012 at 11:08 pm

Venkat V,
In this case she will have to go through the cap and can start working on H-1 from Oct 1.

Reply

Venkat V February 27, 2012 at 5:43 pm

Hi Saurabh.

Extremely thankful to you for your reply. I have two more queries.

1. How can I figure out if my wife’s H1B was CAP exempt in 2008 or not. By looking at the (I-797)approval notice, I am not able to figure. She was allowed to start on H1 from 1-Oct-2008 like anyone else. She was not doing any research but was a Business analyst in a Not profit Hospital’s IS division.

2. Is there a list of companies which are CAP exempt.

Please let me know.

Reply

Ravi February 27, 2012 at 7:13 pm

Hi Venkat,
You will find the information if it cap exempt or not when you look in the I129 (petition).
Ravi.

Reply

Satya February 22, 2012 at 11:21 pm

Hi Saurabh,

Looking for some advice for my situation.
I am currently on L1B which will expire in April 2012. My company is asking me to file for an L1A i.e. extend and amend request.
However, i have plans for higher studies (confirmed admit) and plan to get a student visa in july 2012. Below are my questions :
1) Come July if my extend and amend request is still in progress, can i go for a F1 visa stamping or will that be a problem
2) In general, do you see converstion from L1B to L1A as problematic – i have 7 yrs of workex and with the same company for 6 yrs now. I know it depends on various factors but looking for your thoughts

Thanks a ton in advance :)
regards
Satya

Reply

Saurabh February 23, 2012 at 1:53 am

Satya,
1. If you mean you will go out of US for F-1 stamping, then I think it would be ok. You may be evaluated whether you are a potential immigrant or not and then approved/denied the visa.
2. The chances of success will depend upon L-1A requirements and whether you qualify for it or not.

Reply

Satya February 23, 2012 at 1:23 pm

thanks Saurabh,
on #1: what i meant was can i go for stamping in say Chennai consulate while a decision on my L1 extension is not yet out i.e. its under process. Is there any rule which says i cannot apply for student visa (or any other visa) while my L1 visa extension is in process.

Thanks
Satya

Reply

Saurabh February 23, 2012 at 2:04 pm

Satya,
Are you currently in US on L-1 w/ L-1 extension pending? If yes and if you travel out of US for F-1 visa stamping, then your I-94 extension would be abandoned. When going for F-1 stamping, you will be evaluated to see if you are potential immigrant or not as F-1 is a highly non-immigrant visa. I don’ t think there is any such rule, but it will be up to officer’s discretion.

Reply

Satya February 23, 2012 at 4:16 pm

Hi Saurabh,

I am on L1B currently thats valid till April. My company wants me to file for an extension and amend L1A and stay till June; But i made plans to study so i am keen on staying beyond april, if it gets me into trouble with F1. Hence my question. your thoughts ?

Reply

Satya February 23, 2012 at 4:17 pm

sorry i meant “so i am NOT keen on staying beyond april” in the above comment.

Reply

Saurabh February 23, 2012 at 11:17 pm

Satya,
Yes, you can try that, and it may work out.

Reply

Padma February 22, 2012 at 11:03 pm

hi Saurabh,

I have a question on COS.
I entered with L2 and joined a company with L2EAD. The same company has filed for my H1 with COS. I am still waiting for approval; it was filed on Oct18 with CSC[I know 4 months and still waiting :-(]
Now my husbands visa (ofcorse my L2 I94))expires in April and he is trying to file his extension. And he is planning NOT to include me in this extension.
So my question is
a. if his extension comes through before my H1 approval, will i be out of status?
b. Do you suggest that he include me in the extension so that i get my L2 extended – wouldnt that cause a problem for H1
c. And any idea on H1 processing status by CSC.

Sorry for long comment :-)
Appreciate your help

Regards
padma

Reply

Saurabh February 22, 2012 at 11:13 pm

Padma,
1. Your husband’s L-1 extension approval will not make you out of status. You would go out of status only if your I-94 expires, but then you will have a pending H-1 w/ COS application, and so it should be fine. Real problem would arise if your H-1 gets denied.
2. If you are added on extension application, then it will start a race scenario b/w H-1 and L-2. The petition that gets approved later will determine your final status.
3. They are processing Oct-Nov petitions, so your petition may get processed anytime now.

An alternate is to upgrade your petition to PP, so that USCIS adjudicates it within 15 calendar days. In case H-1 gets approved, you are all set. In case it gets denied, you can get yourself added to your husband’s extension petition (assuming it has not been filed by that time).

Reply

Karan February 22, 2012 at 10:53 pm

Hi Saurabh,

I came to US in May 2011 through Company A and changed my job in Nov 2011 and got my H1 transferred to Company B. Its been 3 months since my joined Company B.

Question:
Company B promised me Green Card processing after 3 months of joining, but now they say the company does not have a Green Card Policy. If I again change my job and join a Company C which will process Green Card, will I face any problems in Green Card processing as I switched my first job in 5 months (Company A) and then second job (Company B) in 3 months.

What would you advise?

Regards,
Karan

Reply

Saurabh February 22, 2012 at 11:06 pm

Karan,
That would not impact your GC processing. However, employer/attorney may ask for experience letters from A and B at the time of GC filing. If you do not leave on amicable terms, the companies may not co-operate that much w/ these documents. You will then have to talk to attorney if they can accept (ultimately it is USCIS that has too accept the docs) alternate documents like experience letters from colleagues on personal stationary.

Reply

Venkat V February 21, 2012 at 1:53 pm

Hi,

This website is fabulous. I am seeing that you are answering so many queries. I will recommend this site to all of my friends.

My query is something like below:
I am on L1 B Visa. If i apply for H1B visa and assuming that it will be approved,
1. Should I Switch to the new employer effective from 1-Oct-2012.
2. Can I continue working for my current company on L1 even after 1-Oct-2012 if I dont get a job through the new employer. Is there a way in which I can keep working for my current employer even though my H1B is approved from 1-Oct-2012.

Please let me know as asap.

Thank you.

Regards,
Prabhu

Reply

Saurabh February 21, 2012 at 10:03 pm

Venkat V,
1. If your H-1 is approved w/ COS, then you need to start working on H-1 from COS approva date (usually Oct 1 2012)
2. Only if COS is not approved or has not been applied. If you want to continue working on L-1 even after Oct 1, then you need to apply for H-1 w/o COS. Later when you are ready to start working on H-1, you can either apply COS from L-1 to H-1 or go out of US and get H-1 visa stamped in the passport.

Reply

Murtuza February 21, 2012 at 10:18 am

Hi,

I am currently in US on an H1B since Jan 2012,
I am looking at a change in employer,
Can I change my jobs? Are there any legal implications of changing in 3 months time of initiating your H1B job?

Thanx for your reply.

Murtuza

Reply

Saurabh February 21, 2012 at 10:23 am

Murtuza,
You can change employer. There are no legal implications to change employer if you have been on that job for less than 3 months. The only thing I can think of is making the old employer unhappy.

Reply

Ravi February 18, 2012 at 3:47 pm

HI Saurabh,
I have a querry? Initially i was on H1b till 30 June 2011, my employer applied for the extension before June 30, and was approved the petition, on the petition the valid dates mentioned are 8/25/11 to 6/30/13. I am not sure why the start date is 8/25 instead on 7/1 though it was applied before the expiry. Do you think i have become out of status for that period 1/7 till 8/24. I have remained in the states and been working for the same job and company. Hope you can answer .
Thanks.

Reply

Saurabh February 19, 2012 at 3:13 pm

Ravi,
I have replied to your other post w/ same question.

Reply

Ravi February 23, 2012 at 4:55 pm

Hi Saurabh,
In regards to the above querry, i spoke to my employer, they say it is fine as my petition was filled in time so i maitain the status. However i doubt because on the approved petition it says that the foriegn woker is authorised only for the period approved. If you have any more thought.
Thanks.
Ravi.

Reply

Saurabh February 23, 2012 at 11:21 pm

Ravi,
Even I think it should be fine as everything was filed timely, and USCIS did a mistake w/ the dates. Keep all documentation for future reference.

Reply

Vipul Modi February 18, 2012 at 8:17 am

Hi Saurabh,

I am currently on H1-b (cap-exempt, valid until 2014 but not stamped) , and transferring to a new firm (cap-subject). The new employer will apply for my visa (cap-subject) on 2nd April or later, and I may be with concurrent H1-b employers.

The question is about my wife. She needs to travel to India. With her current status (H4 – from cap-exempt), she can go back to India and get that stamped on her passport. Now is she required to be back in U.S. before the new firm files for the H1-B (cap-subject) and her H4, or she can travel even after 1 month from the date when the new H1-B is filed (irrespective of approved/denied)?

I understand that she needs to have a valid visa or status for travel, but if one employer keeps maintaining my status, and the other employers’ petition is still pending, Will that be a problem?

I would really appreciate if you can provide any guidance to us, as her travel date is approaching soon. Thanks.

Sincerely,
Vipul

Reply

Saurabh February 19, 2012 at 1:32 pm

Vipul Modi,
A dependent’s status is determined through the primary applicant. So as long as you are maintaining legal status by working for one employer, she should be fine. So I don’t think it will be a problem.

Reply

Vipul Modi February 19, 2012 at 1:39 pm

Hi Saurabh,

Thank you for the response.

Also, I believe she can travel alone and get her H4 stamped by herself (provided she has all documents), and I need not be there with her for her stamping. Some more info: This is my first H1-b stamping, so It should not be a problem at all right?

If you can navigate me to a place that lists the documents required for H4 stamping, would be highly appreciated. Thank you Saurabh.

Sincerely,
Vipul

Reply

Saurabh February 19, 2012 at 5:36 pm

Vipul,
That is right. You are not required to be present for her H-4 stamping.

Here is an article w/ the list of documents required. Some additional documents may be required if working for consulting company.

Reply

Alex Jones February 16, 2012 at 4:08 am

Hello There,

Can 2 or more employers apply for an H1-B petition for a single employee ?

If Yes, What are the pros and cons ? Is this counted as one single application or multiple applications subject to the yearly quota ?

If No, What happens when this happens ?

Reply

Saurabh February 16, 2012 at 10:16 am

Alex Jones,
Yes, multiple employers can file the petitions for you. From quota perspective, it will still be considered as 1 petition, which means after your petitions are filed available quota count will be decreased by 1 and not 2.

Advantage is that in case both petitions get approved, you can then decide which employer to join (more choices). Disadvantage is that you might make one of the employer unhappy in case you decide not to join them.

Reply

Barindar February 16, 2012 at 2:26 am

Sourabh,
My petition was filed on 28th Oct. it starts WAC still its showing “Initial Review”.
When can we expect update on this.

Reply

Saurabh February 16, 2012 at 10:09 am

Barinder,
CSC is currently processing Oct petitions, so your petition may get processed in another 1-2 weeks.

Reply

Kiran February 16, 2012 at 1:25 am

Hi Saurabh,

My husband’s visa is rejected and sent back to USCIS. He was in US for 5 years, pursued his MS and worked on OPT and few months on H1. Since 2011 he is in India and is working for a reputed IT company…

My OPT is going to expire on June 15th, I am planning to file for H1B in April.

Lets say my H1B is approved, I believe I am authorized to work in US even after June 15th till Oct 1st, with new I20 and my OPT will be extended.

My question is, Can I sponsor F2 for my husband once I get new I20 (cap-gap OPT extension)?

or

Shall I wait till Oct 1st and sponsor H4?

Please advice

Thanks,
Kiran

Reply

Saurabh February 16, 2012 at 1:53 am

Kiran,
IMO, he should go for H-4 and not F-2. Your H-1 would be filed w/ COS so that your status changes to H-1 from Oct 1, 2012 to H-1. Your husband will be entering US after your H-1 has been filed, which means he will have to file COS separately from F-2 to H-4, which may or may not get approved by Oct 1. Also no premium processing option is available when for standalone COS filing. However, if the plan is that he should enter US ASAP, then he can go for F-2 interview now, enter US on F-2 and then file for F-2 to H-4 COS along w/ your H-1 filing.

Does that clarify?

Reply

Kiran February 16, 2012 at 3:38 am

makes sense. Thanks Saurabh

Reply

Kiran February 16, 2012 at 4:17 am

Saurabh… quick question…

Assume after Oct 1st he is in US on H4 and he wants to apply for H1B, does the FY 65K quota apply for him?

As per my knowledge, If X’s H1B is approved in the past from the next time X does not come under FY 65k cap and can apply any time(before April 1st). Correct me if I am wrong…

But in my husbands case H1B is approved but rejected during visa stamping, does the above policy apply for him?

Reply

Saurabh February 16, 2012 at 10:14 am

Kiran,
In this regard, my understanding is that if USCIS has revoked the petition , then one needs to go through the cap again. However, if USCIS doesn’t revoke the petition, then it can still be used to file cap-exempt petition and not be subject of 65K cap. However, check w/ an attorney as well just to be sure.

Reply

Dileep February 14, 2012 at 2:30 pm

Saurabh

Congrats on bringing up a wonderful site for all the Visa Questions. I am on F1-OPT and employer will be filing H1B April 2012 with a start date in DEC2012.

Presently my wife is on F2 VISA. My question is,

1. Can she do a COS from F2 to H1B is she finds a employer who is ready to sponsor her H1? If yes, What all documents she has to produce.

2. What is the chances that her COS from F2 to H1B being accepted?

3. If, her COS gets approved, can she work immediately or she has to go home to get stamped or has to wait till Oct to start her work.

4. Any chances of her F2 Visa being revoked and sent home for applying for the COS?

please clarify my questions and it would be really helpful.

Thanks

Reply

Saurabh February 14, 2012 at 9:46 pm

Dileep,
H-1 start date cannot be more than 6 months in future. So if it is applied in April, then start date cannot be beyond Oct 1, 2012. If you want to have start date of Dec 2012, then it needs to be applied in June 2012.
1. Yes, that can be done. From her side they would need proof of her maintaining status which in turn means your OPT payslips, I-20 etc. They would also need a copy of her I-94
2. It will depend upon her profile, employer credentials and the offered position.
3. She can work on H-1 from COS approval date (which would be Oct 1, 2012 or later). No stamping is required as long as she is in US.
4. In case her COS is denied, they wouldn’t revoke her F-2 unless it is found that she is not maintaining status. In addition, her F-2 will become invalid once you move to H-1 (as her F-2 is dependent on your F-1).

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Tkk February 14, 2012 at 10:40 am

I have H1b stamped till 2014 and right now in US .

Q1 – If I go for h1b transfer to some other company and it gets denied, can i still continue working with current company .
Q2 – If H1b transfer takes place successfully then do I need to go for stamping again for India visit?

Thanks.

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Saurabh February 14, 2012 at 1:50 pm

Tkk,
1. Yes
2. No as long as your current visa stamp is valid. You can start working for the new employer as soon as the transfer petition is received by USCIS or after the approval or never (i.e. continue working for old employer even after the approval).

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Tkk February 15, 2012 at 1:37 pm

Releated to Q2 – I am confused cause stamped visa has got my current employer name printed on it . So after H1b transfer if I had to visit india , I still dont have go for restamping there in india right ?

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Saurabh February 15, 2012 at 6:59 pm

Tkk,
That is correct. As long as the current visa stamp is valid, one can use it in conjunction w/ new approved petition to travel to US. I have personally done that in the past.

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Sasi February 14, 2012 at 10:26 am

Hi Saurabh,

I came to US in July 2011 on a B1 and my company converted my B1 to H1 in October and transferred me to their Us subsidiary. Now I took an filled up an application for my H1 stamping. In the application, I forgot to mention my Indian company in previous employers. Will that be an issue? Is there a way to correct this?

I am not sure if this is the correct forum to post this, but just trying.

Thanks

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Saurabh February 14, 2012 at 1:47 pm

Sasi,
Have you already scheduled an interview? If no, then you can submit another DS form and schedule the interview w/ that. If not, then I don’t think it will be a big issue in future. It’s there in your resume as part of the information submitted to USCIS.

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Ravi February 10, 2012 at 10:04 am

Hi Saurabh,
First I would like to congratulate you on your wonderful blog, it has provided me lot of info. My wife is on H4 and is planning to start MS in fall and wants to change status to F1, I want to ask if you know should i need to see immigration attorney, or is it sufficient to apply I539 along with the documents. Your input is appreciated.
Thanks.

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Saurabh February 10, 2012 at 11:04 am

Ravi,
The process is not difficult, and you can do it by yourself as well provided you have all the necessary documents. You need to get the I-20, give the SEVIS fees and then apply for I-539 along w/ your and her documents.

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Smhpcl1 February 8, 2012 at 10:48 pm

Hi, For I539 petition withdrawal COS from L1 to H4 we called USCIS and officer told us to send written application to the center where it was filed. We sent this letter and was delivered in a day on 5 Feb. We were also tracking status online for H4 petition and it is still showing in initial review stage, but yesterday I got letter at my house, 797A approval notice for H4 effective 02 Feb. I am not sure if there is still any chance of withdrawing it.
Today again we called up USCIS and they asked my wife to take Infopass appointment and also mentioned that now for CIS she is on H4 and cannot continue with the employment (previous status L1). In case we still decides to withdraw the petition, then my wife will be out of status. My question is, Are there any chances of coming back to L1 status. Also whether my wife have to leave the job immediately or is there any grace period. Thank You!
Please advice!”

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Saurabh February 8, 2012 at 11:34 pm

Smhpcl1,
She can go back to L-1 status through following ways:
- file COS from H-4 to L-1, and this may take 2-3 months to process. Your status would remain H-4 until it gets approved
- leave US and re-enter on stamped L-1 visa. This causes in change more quickly, but requires L-1 visa stamp in the passport – so you will have to go for stamping if the current stamp has expired. You can also evaluate whether to go to CA or MX and then return on L1 visa stamp (as long as you don’t need to get it stamped).

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jasmine February 8, 2012 at 12:55 am

Hi Saurabh,

I am on H4 now applied for H1 last year and it is still under processing.In how many days after my H1 approval should I get a project ?

Thanks,
Jasmine

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Saurabh February 8, 2012 at 12:59 am

Jasmine,
Once your H-1 starts, you need to start getting paid ASAP. If your employer will not pay you while you are on bench, then that means you need to find a project ASAP. If your employer is a good one and will pay you even when you don’t have a project, then have some time in your hand. The important thing is to keep getting paid while you are on H-1 status.

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Biswajit February 6, 2012 at 12:40 pm

Hi Kumar/Saurabh,

Is there any change in H4 work criteria this yr?
I just came to know from one of my colleague that H4 holders can legally work in US starting from this year w/o going for H4-H1 transfer.?
Appreciate your response on this.

Thanks
Biswajit

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Saurabh February 6, 2012 at 1:39 pm

It’s still a proposal and nothing has been decided yet. Here is the official release from DHS.

I don’t think they will be issuing EADs to everyone on H-4. If you go through the text on the link they will be issuing EADs to folks whose spouses have their GCs filed. Again, it’s not clear at what stage the GC should be at (PERM or I-485 etc), how long one should have stayed in US on H-1 and when it will go in effect etc. They might release more information in few weeks or months.

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Isha Shamra February 4, 2012 at 2:23 pm

Hi I have L2 Valid till Aug 30th and I have received H1B petition Approved. I am in Inida now.

I got my H1B Petition Approved .. while I am in India.

I Need suggestion.. Can I travel to US on L2 and then apply for the COS to H1B without getting H1B visa stamped.

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Saurabh February 4, 2012 at 11:56 pm

Yes, that can be done as long as your spouse on L-1 is still in US. You cannot travel to US if the L-1 holder is not in US.

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Shaan February 3, 2012 at 2:33 pm
Saurabh February 3, 2012 at 7:07 pm

Here is the official release from DHS. As these are just proposals, more information will follow in future. This article describes each proposal in detail, but if you have any specific question then you can post them here.

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Guest February 3, 2012 at 10:28 pm

Thats something good to hear!

“Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. ”

Does it mean that H4 would have work authorization once H1B has started with the GC process. ie. applied for labor?
or, when H1B holder has labor and 140 approved and applied for 485?

Reply

Saurabh February 4, 2012 at 9:17 am

They haven’t provided much clarity like what’s the minimum period, and exactly where in the GC process. In the 1st statement they mentioned pending adjustment of status, which is 485 and later they talk about begun the process of seeking lawful permanent resident. So we will have to wait for more clarity. If it’s pending 485, then I don’t think it’s a big win as currently EAD can be issued when 485 is pending (like it was issued to all spouses whose 485s were filed in summer of 2007, but dates didn’t become current immediately).

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SMHPCL February 2, 2012 at 1:03 pm

I am on H1 and my wife is on L1 I94valid till 2013. In Dec 2011 I filed I539 COS from L1 to H4 for my wife because she decided to quit the job, but now she has continued employment and now we want to withdraw the petition. Currently the petition is in Initial review stage. Can you please tell me how we can withdraw the petition and what all documents are required for withdrawing.

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Saurabh February 2, 2012 at 3:25 pm

You will have to send an application requesting them to withdraw the petition. I think you will have to submit copy of receipt notice, but I don’t know what else is required. You can call USCIS and check w/ them.

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pankaj gupta February 1, 2012 at 11:14 pm

i came here in usa on b2 (visitor) visa. and applied for change of status to f1 to study MBA here in november 2011, than i got RFE from uscis for which i replied in time inmid of january. now i am waiting for there reply. but my current visa is expiring on 3rd feburary.i am told that i can wait untill i hear from uscis. will this work or shall i try to leave asap, so that my visa status is not hurt.

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Saurabh February 2, 2012 at 12:24 am

You can continue to stay based on your pending COS. You can do this for maximum 240 days after your I-94 expiration date. However, if your COS is denied, then you have to leave US ASAP.

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Guest January 30, 2012 at 4:41 pm

Thank you, Saurabh.

My scenario is EVC model. I am waiting to join the client as the client is particular about my SSN. I have applied for my SSN and waiting since 2 weeks. My documents have been sent from local ssn office to DHS for verification after which the application would be completed. The officers say it may take upto 4 weeks for DHS to verify the documents. Is there any other alternate way to speed up the process?

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Saurabh January 30, 2012 at 7:18 pm

There is no way to speed up the process. Talk to your employer if they can pay you even while SSN is pending. You need to be getting paid all along or else you will be considered out of status.

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Guest February 1, 2012 at 12:35 pm

Employer says that he cannot run the payroll without SSN. Please suggest me what could be done in this scenario.

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Saurabh February 1, 2012 at 6:29 pm

If they are not willing to run the payroll then ask them to pay backwages once your SSN has been generated. If USCIS questions in future about this month of no pay, you can explain the situation to them along w/ backwages to support your case.

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Guest February 2, 2012 at 12:08 pm

Thanks Saurabh. I’ll check with them.

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Guest February 2, 2012 at 7:19 pm

My employer has asked me to give a letter to show that I am on leave from the start date due to personal reasons.

Will this be a sufficient document to justify the delay of work?
Do I still need to get my backwages paid?

One more qn, I got a receipt from SSN office (after 2 weeks of applying) stating that I have applied for SSN and I will be getting in next two weeks.
Does this mean that my documents are verified with DHS and my number would be generated soon? Can I get my no over phone before the card reaches me through mail?

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Saurabh February 2, 2012 at 10:42 pm

It is not ok just to be on vacation b/c your employer is not willing to pay you. Are you sure your employer will start paying as soon as you get the SSN, or will they ask you to continue being on vacation until you find a project?

It means that the office confirms receipt of your application. It doesn’t mean that documents have been verified by DHS. You can call SSA office in another week or two and ask for status update. I don’t think they will provide the number over phone, but you can try.

Guest January 30, 2012 at 1:49 pm

Hi Saurabh,

I have a doubt w.r.t COS

My scenario: I was in H4 earlier. I applied for H1 through an employer and got it approved. My employer shared only the EAC no of I-129 application. Hence I believe only I-129 was applied and I-539 was not applied for me. Is there a way to find out?

But I received my I797 along with I-94 with the start date of Jan 16. Hence I am assuming that I am directly in H-1B now and my H4 is no more valid. Am I right?

Or is it necessary to apply for I539 seperately? Please advice.

Thanks.

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Saurabh January 30, 2012 at 4:04 pm

Your COS has been approved and it seems like employer opted for change of status in the I-129 application (and not consular processing). You are on H-1 status from Jan 16, and need to start working and getting paid from that date onwards.

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Durgesh January 31, 2012 at 1:00 pm

Hi..

Congarts for ur H1. Actually, my wife will be coming on H4 to US very soon. I am looking for any potential consultants(company) who can sponsor H1 visa for her. Could you tell me how did u get the sponsor (if u dnt mind). I am trying since last one month, but not getting any success with that…
I will be thankful to u.
Thanks,
Durgesh

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Guest February 1, 2012 at 1:28 pm

Hi Durgesh,

Thanks. Good to know that you are taking efforts well ahead of time.
You can mail me at [email suppressed] for details.

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Durgesh February 2, 2012 at 12:53 am

Hi..

I did not get ur email id. plz let me know how to contact u.

Thanks,
Durgesh

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Guest February 2, 2012 at 7:22 pm

gmail id: mgeethac

I am sorry if I am not supposed to send out personal ids in this forum.

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Saurabh February 2, 2012 at 10:37 pm

We prefer to remove any email addresses that are in the email format and can be picked up by web crawlers for spamming purpose. It’s ok to put them the way you posted above.

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Durgesh February 8, 2012 at 5:38 pm

Hi Geetha,

I have mailed on the id u have provided. Please reply to me when u have time. i m waiting to hear back from u…
my gmail id is: dnmech007[at]gmail
Thanks,

Reply

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