What is Change of Status (COS) ?
When a non-immigrant or an international student/ worker 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/ international student/ worker to move from one visa category to another, with few exceptions, like from H4 visa to H1B or F1 visa to H1 or L1 to H1B, without needing to go out of the country and getting the visa stamped for the new category. This process is called Change of Status and commonly referred as COS in immigration context.
What is the process for Change of Status (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, that states you are in valid status and not I-94 not expired
- Depending on the status you are in, you need to submit additional documents.
- If working on H1B or L1, copy of most recent payslips/ pay stubs and W2s
- If on H4 or L2 as dependent, then copy of spouse’s payslips and W2s (when current visa category is H-4 or L-2)
- If on F1 visa, copy of I20, if working on F1 OPT, relevant pay stubs as well.
- If working employment documents like employment letters, etc.
- Also, if on H4 or L2, then spouse’s employment documents and approval notice of H1B/L1
The above documents are just few examples, if you have any other documents that can prove your status, submit them accordingly.
How long does Change of Status (COS) take to process?
If just the COS is filed, then it takes few months to one year process, there is no specific timeline define. You can check USCIS website to see current processing times. If the COS is filed along with H1B with I-129 form, then it can also take anywhere from few weeks to few months to process. The actual processing times are available at USCIS website. If you have premium processing option available like for moving to H1B, then you can get it done in 15 days, but you need to check USCIS website, if that is available at that point. For instance, in September 2018, USCIS suspended premium processing until Feb 2019
How long can I stay in US with COS in pending state ? What if my I-94 expires ?
In general, you can stay in US, as long as a final decision on your Change of Status (COS) application is made. In general, if your I-94 expires, your status in US ends and you are considered out of status. But, in the case of COS pending application with I-94 expired, you do not accrue ‘unlawful presence’. You will be in period of authorised stay. If your COS is approved, your I-94 tie back to the expired date and you will be considered as maintaining proper status. If let’s say you get denial on your COS application and your I-94 has expired for the previous status, then you will need to leave US immediately after you get the decision notice. For more info, read Lawful status vs Period of Authorised Stay – How it works
Can I expedite 221g or RFE processing?
If standard COS is filed, then it cannot be expedited. If it is filed along w/ I-129 form, then it can be upgraded to premium processing. In this case, it will be adjudicated within 15 calendar days. If your COS petition is filed under premium, then once your RFE response is given, the 15 days calendar days clock kicks in and will be expedited.
What happens once COS is approved?
If USCIS approves the COS, then they would issue approved 797 along with an attached I-94. The attached I-94 will have the start and end date of the new visa category along with annotation for the new visa category. Check Sample H4 Approval Notice with I-94. 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 with COS?
When COS is approved, the alien’s visa category changes immediately. No need to go for stamping. However, when the alien leaves the US next and wants to re-enter on new visa status into US, then they will have to go for the visa stamping of that visa category.
You may travel out of US while COS is pending, but the COS will be considered abandoned as you left US. Your petition may be approved, but COS part will be denied and you will need to get Stamping at consulate to get into the new status.
COS is a request to USCIS to process your application in a way, so that they grant you new visa status, without leaving the country. It is Change of Status of applicant from X to Y without leaving US.
No, COS is not relevant when you are out of US. It is applicable only when you are in US and trying to change your status from one to other.
Not necessarily. Your visa stamping at consulate depends on the visa type, its application related supporting documents and not directly related to your travel and COS abandonment.
Any other questions ?
Hi Saurabh,
I’m on H4 and is in US now. I got an employer who would be filing H4 to H1 with COS by end of April. I would need to go to India for an urgent family matter on August and would be coming back in first week of Sept. I’m bit unclear on the rules . Could you please let me know
1) If my COS is not approved before i travel and i come back on H4 and then it gets approved, Do my company need to file COS again by amending the first application ? Do i need to go back to India for stamping to start the work?
2) What happens if COS is getting approved when i’m at India ? Do i need to wait to get my petition and stamp it to come to US ? Or i can enter on H4 and start working from the COS start date?
3) I believe there wont be any issues if i travel with COS approved and come before Oct 2012. Could you please confirm ?
Many thanks in advance
Sajitha
Sajitha,
1. If COS gets approved before you leave US, then you can still return to US in Sep and automatically be on H-1 from Oct 1.
2. If you leave US while H-1 COS is pending, then COS will be abandoned. You will return on H-4 visa and continue to remain on H-4 visa. So you will either have to file COS after returning to US, or enter US on stamped H-1 visa.
3. Refer (1)
Hi Saurabh,
Thanks for your prompt response.
Just one more question.
I think i should go for premium processing then.
If I file my H1B with COS in premium processing, do you think of any possibility of H1B petition getting approved while COS is not approved.
Thanks
Sajitha
Sajitha,
Yes, there is a possibility that H-1 will get approved but not the COS. This typically happens when one travels out of US while H-1 is under process, or if USCIS determines that you didn’t maintain legal status at the time of H-1 filing.
Hi Saurabh;
My OPT is expired on June 7, 2012. My company has filed for H1b (COS w/ start date Oct 1st, 2012) and the lawyer sent it to USCIS this week and expecting them to receive it on the 17th of April. My question is, what will happen if my Opt is already expired but i still haven’t got an answer whether they approve or reject my application? Do i need to leave the country? Please advice. Thank you
Eli,
You will become eligible for cap-gap once your petition reaches USCIS. This means you can continue to stay and work in US even after OPT expiration date. You will be on this status until Oct 1 or H-1 denial date, whichever is earlier. Just let your school DSO know about your cap-gap status so that they can update SEVIS record accordingly.
Hello All,
I have a certain set of questions regarding the H1 and H4 status
I am currently on an L2 visa as a dependent on my spouse the L1 holder. I am employed currently on L2, however i have found myself an employer who is filing my H1B for the year 2012.
Mean while my spouses employer is filing for his H1 and my H4 as well.
So the situation is my H1 and my H4 application will be under processing in the same period and effective on same date 01-Oct-2012.
1.Is this a valid situation to apply for H1 and H4 by different employers in the same period for processing?
2. If my H1 B gets approved and H4 is also approved. Will my approved H1 status become void ??
3. In short can I hold the status of H1 as well as H4 but use only one of the two?
My employer suggested that we should file for H4 as well, as there is no guarantee for H1 but i want to make sure that i can continue working if my H1 gets approved.
Need of an urgent reply.
Thanking you in anticipation.
Kumari,
1. Yes, this is possible.
2. Your final status will be determined by the petition that gets approved later. So if H-4 gets approved w/ COS and then H-1 gets approved w/ COS, then your final status would be H-1, and vice-versa.
3. You will not have both statuses, but just one based upon #2.
hi Suarabh,
Thanks for your inputs.
I am currently on L1b visa with employer X and if I get approval on H1 visa from employer Y
a. Is it mandatory that I should start working on H1 from 1st October or can I start working later too. [1/2 months after]. Once I decide to start working with Y, do I need to wait till COS is complete or I can start working immediately. [I want to ensure my L1 continues as long as possible and I take this time to find right job]
b. My spouse is currently in India and she is planning to come to US. If my H1b is approved but I am yet to start working for new employer, can my wife enter on L2b Visa?
Saurabh S,
1. If you want to continue working on L-1 after Oct 1, then ask H-1 employer to file H-1 w/o COS. This way, your status will remain L-1 even after Oct 1. Later, when you want to start working on H-1, you can either file COS from L-1 to H-1, or go out of US and enter on stamped H-1 visa.
2. It will depend upon your visa status in US. So if H-1 is approved, but your visa status is still L-1 (this is when COS has not been filed/approved), then she can enter on L-2 visa. However, if your visa status is H-1 (based on COS approval), then she needs to enter on stamped H-4 visa.
Also Saurabh, is it mandatory that my visa H1 should be stamped before my wife can get H4 stamped? [or I can just initiate COS process and that would be enough]
Saurabh S,
Your H-1 stamping is not required for her H-4 stamping. However, she can go as early as 90 days prior to H-1 start date. In other words, if H-1 gets approved for Oct 1, then she can go for H-4 stamping on or after July 1.
Hi Saurabh,
I filed for my H1B recently.
I am expecting another job offer from a different company who are ready to file my H1B.
Will it be a problem if two H1B’s are filed on the same persons name by two different companies in the same year.
Thank You
Suma,
Will not be an issue.
Hi Saurabh,
Thanks for wonderful service. Greatly Appreciated.
My L1B Visa is expiring on sept3, 2012, I requested my company for an status change to H1B. I got the I-129 approval notice by today. Please let me know I need to extend my L1B Visa expiring from sept3, 2012.
I94 Expiry: Sept 3 2012
VISA Stamped Date: Oct 22, 2010
Date of Entry to US: Feb 27, 2010
Thanks,
Sharan
Sharan,
Do you know if your I-129 was approved w/ COS or w/o COS?
Usually, you still need to maintain L-1 visa status until Oct 1 (assuming H-1 is approved w/ COS) and will be on H-1 status from Oct 1. This requires filing of L-1 extension to be in regular status b/w Sep 3 and Oct 1. Once Oct 1 passes, your employer can withdraw L-1 extension as you will now be on H-1 visa status (again, assuming H-1 is approved w/ COS).
Hi,
I am currently on B1 visa. I have a valid i-94 till October. But My project may get completed by August. I am planning to file H1-B for this year through a consultancy with premium processing. Now my questions
If my project gets completed by August. By that time if I get my H1-B approved with COS, Can I resign from current company in August and still stay in US? and start working for new employer from Oct 1st? or will it become a illegal stay?
Donovan Anandaraj,
Until Oct 1, you will be on B-1 visa status and need to maintain the status in the same. So if your work gets over in Aug and your B-1 employer wants you to return to home country, then you should oblige that. Also, staying close to 6 months on B-1 (even if allowed as per I-94) is not recommended as consulates do not take this lightly.
Thank you very much for the reply Saurabh
Dear Saurabh,
I have been working in an Indian Company for 5.5 years and came to US at the starting of Feb 2012. I am currently on leave and need to know whether my company can file a L1b for me?
Also is it mandatory for me to leave the US and re enter to be eligible to work or can I start right away after my petition is approved?
Regards,
Shals
H4Status,
You are currently on H-4 and want to move to L-1, right? If you qualify for L-1 visa then I think it can be filed while you continue to be in US. You don’t need to go out of US for L-1 processing. Do you know if you will be doing L-1 eligible work?
Hi Saurabh,
I didn’t quite get the statement “if you qualify for L-1”. What does that mean?
I know that I will be doing L-1 eligible work.
Just wanted to know that is it necessary for the visa to be stamped before I begin to work?
Regards,
Shals
H4 Status,
To qualify for L-1:
– you need to have worked for that employer for at least 1 year outside US in the past 3 years
– you need to be doing L-1 eligible work which is use of employer proprietary tools/applications/technology/skill-set which is not known outside the employer. In other words working on commonly available technologies like Java, .NET, manual testing etc is not covered under L-1.
Hi Saurabh,
Thanks a lot for your reply.
Regards,
Shals
Hi Saurabh,
Many thanks for your support to all of us.
Need you help. I have an employer who is ready to file my H1B petition (on my expenses). He is ready to give all the required documents for stamping like I-797, petition approved documents, offer letter, broucher, etc,etc, but except Client Letter. As he currently doesn’t have any client or project in hand. Assuming my H1 Petition gets approved, I have two questions –
1. If I want my H1B Visa to get stamped in India (Chennai Consulate), how important will be the client letter?
2. Is it risky to go for stamping without Client Letter? what would be expected risk if they demand the client letter? Please help.
Just FYI – I have valid H4 but don’t want to go through COS from H4-H1 as I should be in US to do so which involves risk to my current job in India which I can’t afford to take. Thank you very much…
Ram,
1. Client letter is very important when filing through small-medium size consulting companies.
2. If they ask for client letter, then you will have to get it or else stamping will not be approved.
Hi there,
You seems to be helpful person. I have a question.
Currently I am working on CPT for Consultancy company . I got my CPT from Infosereve Institute in NYC which is not a College. My CPT is valid till August. Now my consultancy is filing my H1. Will there be any problem in getting h1 approved?
What should I be doing if my H1 gets approved since I cannot work until Oct 1?
Arthur,
Until your status changes to H-1 from Oct 1, it will remain F-1 and so you need to maintain that visa status.
Hi Sourab,
i am having 5+ years of experience in IT (Perfromace Testing). now i have been working in Top 4 in Indian MNC
But my question is I completed My B.C.A(regular) and M.C.A from sikkim manipal..
shall i elgible for to apply for H1b visa.pls help out on this.eagrly looking for your reply
Prakashabbi,
If you have education equivalent to 4 years of US Bachelors, then you qualify. If you education equivalent is 3 years, then you need at least 3 years of relevant work experience. To know the US equivalent, you need to submit your degrees and marksheets to an education equivalency agency in US.
Hi Saurabh,
My H1 was sucessfully stamped on March, 26 and I am all set to fly soon to USA and work for my current employer.
Meanwhile, My husband’s H1b case (who had recieved a 221g in November, 2011) , moved to RFE Response Review on April, 3 with a notice that “You should expect to receive a written decision or written update within 60 days of the date we received your response unless fingerprint processing or an interview are standard parts of case processing and have not yet been completed” on the USCIS website.
I want to know is it true as the website claims and we can expect a decision within 2 months, since he was already 10 printed and interviewed? Secondly, after hopefully recieving his H1b, will he have to atleast work for 3 months in USA for his H1b employer before switching a job to the city I will be situated in. Would there be a problem in H1b transfer if a job is switched only after 3 months?
Any inputs from you will be of great help. Thanks
Nia.
Nia,
RFE response review can take few weeks to more than 2 months. Although they state 60 days, it can take longer.
He is not required to work for at least 3 months for old employer before moving to an employer in your city. He can move earlier or later as long as he is maintaining his H-1 status by getting paid. If he changes employer before 3 months, then he needs to submit all payslips since the day he entered US to transfer date, but if he changes after 3 months, then he needs to submit 3 most recent payslips.
hi kumar,
iam on H-1.my wife wants to apply h-1 from a consultant .she is on h-4.we r going to india in july-3rd week,coming back on sep-3rd.the consultant might file h-1 in may end.can i ask him to
file a H-1 without COS,once it gets approved(hopefully) ,apply for COS after coming back?
question: 1) can a COS from H_4 to H_1 be done after getting h-1 approval?
2) what if we get approval before we go to india?
3)what if we get approval while in india?
4)she needs H-4 stamping while in india.can she do that?
we are really confused.our trip is a must for us.iam not sure whether H-1 is done withPP by our consultant.
thanks in advance,hope u will give some suggestion to me.
vijay.
Vijay,
I would suggest having H-1 filed w/ COS w/ premium processing. This way there is a chance that petition will get approved by the time you leave US. You can then return on your existing visas, and she can still be on H-1 from Oct 1. No new COS or H-1 stamping is required in this case. If she has to go for H-4 visa stamping while in India, then she can go for that as well.
hi saurabh,
thanks for ur suggestion. what if my consultant is unwilling for it?what will happen in the second scenario(first H-1,then after coming COS).
thanks,
vijay.
Vijay,
In 2nd scenario, you will have to return on H-4, and then file for COS to H-1 or enter US on stamped H-1 visa. I have seen few instances where attorney have suggested that filing COS on an approved petition is not possible, but I am not sure. Check w/ your employer on the same.
Hi Saurabh,
I am currently on H4 and planning to file H1 from a consultancy very soon. I am going to India on 25th April and my employer is going to file H1 in my absence. I will we back to USA on 30 May. My questions are-
1. What are the differences in the process for filing H1 in USA in my presence and in my absence?
2. When I am returning to USA, my H1 will be in process (not approved) so can I come back on H4?
3. Do I need to file for change of status COS after returning on H4 (when my H1 is still in process)?
4. Will this process cause any bad impact on my H1 stamping in future (when I will visit India in future and undergo stamping)?
5. What is consular processing ? Is it applicable to my case?
Now query regarding my husband.
He is on H1 which is valid till Oct 2012. Recently he got job in new company and they have done his H1 transfer and my H4 extension till Apr 2015. But they are working on deemed export licence for him (he works in Manufacturing) which is taking long time and so he has not yet resigned from the previous employer. We have enough time to visit India before he join a new company. So we are going to India in April and after coming back in May he will resign. Now question is
1. Can he travel to India and come back on his H1 (valid till Oct 2012)?
2. Does it required to get stamping for the new H1 in this visit (valid till Apr 2015 and he will work on this H1 after May)?
3. When now my employer will be filing my H1 in my absence do I need to submit my H4 visa extension document?
4. Do you have any idea what is the time frame to get the deemed export licence?
Please reply urgently. Thank you so much for your help always.
Thanks,
Mrunal
Mrunal,
Wow too many questions 🙂
Wife:
1. When you are present in US at the time of filing (and continue to remain in US until petition gets approved), then it can be filed w/ COS from H-4 to H-1. Your status would automatically change to H-1 from Oct 1 and there is no need to get H-1 visa stamped immediately. When you are present outside of US, then COS cannot be applied.
2. Yes, you can
3. I don’t think it can be filed when the petition is still under process
4. No
5. It means you have to go for visa stamping at a consulate. When COS is not applied/approved, it means consular processing.
Husband:
1. Yes assuming his transfer has been approved
2. If his previous visa stamp is still valid, then no new stamping is required
3. Not really necessary. They need to show proof that you were maintaining legal status in US when you were here. This can be shown either by old H-4 petition or the extended one.
4. No, I don’t
Saurabh,
Thanks you very much for replying all my queries.
Regards,
Mrunal
Hi Saurabh,
First of all thanks a lot for your hardwork in answering so many questions.
My question is reg. B1 to H1B.
Story:
I had B1/B2 for 10 yrs (still valid) from my previous employer and I had made a 3 week trip in 2008 to US. Then I came again to US in Mid 2010 on B2 to visit my sister,searched & got a job after 60 days and also got COS frm B1 to H1B. I worked for the client and then got hired by the same client as a Full-time employee. My Client is a big company and have offices in US, UK and India too. My company will do my GC in EB2 but that will take some years as of now.
Questions:
1. Shall I go to India now with 2yrs W2, pay stubs and other documents for stamping or wait as much as I can?
2. How difficult it would be to get my stamping in India?
3. Do you know anybody who got stamping in near past?
4. Also what reason can I give to the VO?
It will be a great help if you can share you knowledge as I could not find any experience of this kind on google/forums, etc.
Thanks,
Prashant,
1. You should carry 797, resume, degree, marksheets, employment verification letter, old experience letters, I-129 copy, LCA copy and other employer related documents. There is an article on document checklist on this blog (go to Archive section to find it)
2. If you are working for a credible employer, then there should not be any issues and chances of successful stamping are more
3. There are several experiences available on this site (go to 221g tracker post)
4. Reason for COS from B-1 to H-1? You have to be truthful about this.
Hi Saurabh,
I am currently on my OPT and my husband is here in US on F2 visa. Could you please guide us when to acutally apply for H1 visa for him.. Is it after 90 days of his stay in US or can apply immediately. Please advice us and also let us know his chances of getting H1 approved.
Thanks,
Divya
Divya,
I would suggest applying for H-1 after he has spent 60-90 days on F-2. This would help in addressing any concerns USCIS might have regarding his intent.
Chances of H-1 approval will depend upon his profile, employer credentials and offered position’s H-1 relevance.
Saurabh,
Thanks for your reply.
He has an emergency back in India and he is travelling for 15 days to India . Hence, does 90 days count would continue after he is back or since he left to India, he has to wait for another 90 days after he is back to US.
Please advice.
-Divya
Divya,
It is 60-90 days after most recent entry in US.
Hi Saurabh,
Me and my hubby have got a visa for US only in the last week. He has got an H1B where as I have an H4 visa. We might be flying to US in the middle of the next month. I have a HR working experience of 3+yrs and possess an PGDM degree in HR. I wish to work over there in US, Could you please guide me how to proceed with the H1B visa for myself once we are there.
Awaiting to hear from you at the earliest.
Regards,
Supriya
Supriya satbhaiya,
You need to find an employer and then ask them to file H-1 for you. There are articles on this site that can guide you through the process (accessible from archive link at the top). In general you can find employers:
– through your network of friends, colleagues
– on job sites like dice, monster etc
– from list of past H-1 filer available on FlcDataCenter
Once I find an employer is it advised to apply for H1 from India or once I am there in US?
Supriya satbhaiya,
You can have it filed while you are in US as then you can make use of COS and not go for stamping. However, try to have it filed after staying for at least 30 days on H-4 and keep track of quota to make sure it is still open.
Hi Saurabh,
My Status : I have a L1-B visa. Looking for a H1B COS.
Few of questions on H1-B COS.
1. Can another company apply for H1-B COS for me, or should it be the same company as am working for now?
2. If another company applies for a COS, from when can I start working for the new company? after COS approval date or should I start only after Oct 1st 2012?
3. If another company is applying for my COS from L1 to H1, what would be the turn around time for COS approval?
Thanks.
Vinod,
1. It can either be same employer or a different employer
2. COS will be approved for Oct 1 and not an earlier date. So earliest date to work on H-1 is Oct 1 or actual COS approval date (whichever is later)
3. Regular processing would be 2-6 months, while premium processing would be 15 calendar days. If RFE is issued then it can take longer. Even if approved earlier, it won’t go into effect until Oct 1.
Hi Saurabh,
My spouse is on H4 and will be coming here by next month. We are contemplating of enrolling him in a college to change to F1 in order to work. Could you enlighten me on this? I want to know the chances of him being able to work using F1. Thanks a lot!
Redz,
It is not a surety that he will be able to work on F-1. If you are looking for CPT from 1st semester, then it can be tough and you will have to check w/ DSO. He can apply for pre-completion OPT later (again check w/ school DSO), and once he graduates he can apply for post-completion OPT. So do not rely on immediate employment on F-1. F-1 is primarily a full-time study visa and its best to consider it on those terms.
Thanks for that info Saurabh.
I guess it would be better to find him an employer to convert to H1b or wait for the EB2 instead? But still I will check with the school and follow your suggestion.
Redz,
Yes, getting a work visa (H-1) would be better than going this route.
Hi Saurabh,
As I look forward to change jobs from cap-exempt to cap-subject employer, my new employer is filing the petition this week. The question is, my wife is in India (H4 stamped via old employer), and my attorney says that she won’t be able to apply a new I-539 for my wife as she is outside of U.S. Is this correct?
Second, she says that once my new H1-B is filed, the H-4 is automatically taken care of and upon approval of new H1-B, she would be able to change my wifes’ status (as she will be back in U.S by then). According to the attorney, it is not an issue and my wife won’t be out of status but I am just curious if this is correct or not?
Sincerely,
Vipul
Vipul Modi,
Yes, as she is outside of US, no I-539 is required for her.
She is also correct about the 2nd thing. When on H-4, the status is primarily driven off H-1. So as long as you have approved 797 from the new employer, she will be able to manage her status (but she will still have to manage her I-94). When is planning to return to US – after your H-1 gets approved or prior to that? The only issue I see is that she will be given I-94 based on the petition she shows at PoE when returning. This can put her I-94 expiration date (if based on old petition) and your date (based on new petition) out of sync. Not a big issue, but just something you will have to look out for and make sure they don’t expire and timely extensions are filed.
Hi Saurabh,
Thanks for the reply. I see what you are trying to say. My new employer will apply for H1-B next week (say Wednesday, 04/11) and my wife returns on 04/19. Ideally the attorney asked if I wanted my wife to arrive first, and then file the petition for both of us. I suggested that my new employer would not like another one week of delay in joining, hence she will go ahead with my application first, and my wifes’ at a later date.
I understand, I-94 would be out of sync. But suppose she travels, outside of U.S again by the end of the year again. In that case, she will receive an updated I-94. Correct? I mean as long as she gets another I-94 or an extension is filed before the earliest dates on our passports/I-94, everything should be ok?
Sincerely,
Vipul
Vipul,
Yes that is correct. Next time she travels out of US, she will be showing the new 797 on return and get I-94 based on the new 797.
Thank you very much Saurabh for the prompt replies.
Hi Vipul!
I have few questions about your case as it is kind of similar to my situation. I noticed that you want to change job from cap-exempt to cap-subject employer. I am trying to do the same and has discussed about this in the past on this website. When are you going to start the new cap-subject job? Just after the new H1B petition is filled? or after its approval? or on Oct 1, 2012? I have read this article here (http://www.murthy.com/news/n_h1bemp.html). It says when transferring from cap-exempt to cap-subject “the portability provisions do not confer H1B status to the individual. Rather, what is given is a narrower benefit of continued employment authorization.” Does this mean that I will be out of status if I start working for the new employer before Oct 1. How will that effect GC processing in future?
Thank you very much for your help.
Kaushik
Hi Kaushik,
Even though I can start working just after the application is filed, I am going to start after it is approved (just to be on a safer side). For e.g., may be 1st May 2012.
I am not sure if I have the right answer to this, but looks like we do have some authorization to work until 1st Oct’2012, but our status would change to H1-B ‘status’ only on 1st Oct 2012. Did you apply for H1-B already? and What are your attorneys’ opinion?
It is a tricky thing, and I hope we are definitely not out of status and may not impact GC processing (it is a grey area in USCIS lawmaking). Atleast, my attorney is ok with everything. Also, I don’t think I am going for a GC in future, so I may not be the right person to answer it correctly.
Saurabh, do you know about this if it has an impact on GC?
Sincerely,
Vipul
Thanks. I am planing to join the cap-subject job after the new H1B petition is approved.
-Kaushik
Kaushik/Vipul Modi,
I don’t think it will impact GC processing in future.
Good news. H1B got approved. The new I797A says that the start date is Oct 1, as expected. but I am planing to join the cap subject employer in May using the portability option. Hope our experience as explained above will help others…
Hi,
You are saying that: “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.”
Can you please clarify for me what means ‘visa stamping’? Does it mean that I have to get a new visa when I leave US and want come back to US on new status which I changed from B2 to L2 in the previous visit? Or it means that on the entry point I will be stamped with the new
category L2?
Olga,
When you travel out of US next, you will have to go for H-1 visa stamping. This needs to be done at a US consulate in your home country (or any other country you are visiting). You will have to show this visa stamp and your approved 797 at the PoE when returning to US, and you will be admitted on H-1 visa.
Hello
I am a novice. Recently I have received a B1 from my employer & I intend to cancel the trip for now.
* Is it true that the port of entry/departure seal enhances my chance of applying for Visas like F1 or H1B in the future? Because I am planning to cancel the trip for now & quit the company & search for a job/school there in US.
* Will I get either a B1 or B2 or both on my Visa?
* Is it possible that I travel using this visa in the future for job-hunting purposes?
* How hard is it to apply for a ‘Change of Status’ from a B1 to H1B without returning to the country [India] to avoid the H1B quota?
Rahul,
1. Once you have a US visa stamp in your passport, it depicts that initial screening has been done and you were found not to be security threat. This is the only advantage it can have on future H-1/F-1 stampings. As for PoE seal, it doesn’t impact much.
2. They are interchangeably used and refer to same visa. You will get just 1 visa stamp.
3. It will be considered as misuse of B-1/2 visa. You should use the visa only for the purpose for which it was issued.
4. You cannot avoid H-1 quota. What you will avoid is H-1 stamping. USCIS will review the application and determine whether you entered US on B-1 only to move to H-1 later. If they determine the same, it will be considered as a misuse of B-1 visa and it will be denied.
Saurabh
A lot of people/companies/consultants I have spoke to, mention that PoE is important & it makes a difference. Can you please clarify on the same once again?
Please delete the unnecessary content in my comment above immediately. I have posted it by mistake. It contains sensitive information about my details. Thank you for the response. I really appreciate your time on this.
Delete the below content & retain the remaining:
*********
Hello there
Allow me to introduce as a 4+ ye
—-till—-
Confirmation# 4246616
***************************
Rahul,
If you enter on B-1 and then leave timely, they would know that you respect US immigration laws – which is a positive. If you don’t leave timely, then it’s a big negative. If you don’t travel to US but have B-1 visa stamped, its still a positive.
Just b/c someone left US timely, doesn’t add much credit to his/her H-1 application; however if someone didn’t leave timely, then it definitely adds lot of red flags in the petition. That’s my opinion on this. So it is up to you what you want to do.
Saurabh
Thank you for your timely response & also acknowledging my request about the comment deletion.
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* When you say timely, does it mean the time frame the B1 Visa is valid [6 months] or the time frame I mention to the Visa officer during the interview [ say 1 week] ?
* Do the immigration officers have ready access to the information collected during the Visa interview?
Saurabh
Thank you for your timely response & also acknowledging my request about the comment deletion.
**** If you enter on B-1 and then leave timely ******
* When you say timely, does it mean the time frame the B1 Visa is valid [6 months] or the time frame I mention to the Visa officer during the interview [ say 1 week] ?
* Do the immigration officers have ready access to the information collected during the Visa interview?
Rahul,
These days staying close to 6 months can raise several questions during visa stamping. I would suggest leaving US within 3-4 months unless it is really required to stay for entire duration
Are you referring to PoE officers? They will have access to visa interview information, but I don’t know to what depth as they report to different agencies (CBP and DOS).
Hello Saurabh,
Hope you are doing fine.
My OPT expires on Sept,01,2012 and my employer filed for H1(applied in general processing this week). I am planning for a trip to India in the month of June, be back by end of June. So, my question is, do I face any problems travelling with my OPT status with H1 APPROVED/PENDING?
Anil,
It should be fine. However, you need to get your H-1 approved before leaving for India. This way your COS would stay approved, and your status will become H-1 from Oct 1. You will also be eligible for cap-gap b/w Sep 1 and Oct 1.
Thank you, I have heard from one of the attorney, immigration officer could deny the entry thinking that, the applicant already got approved with his H1 and planning to stay longer in US. If so what are the chances of denying? Also what are the chances of my visa getting approved before June or should I go with the premium.
Anil,
It is a possibility but I don’t think it happens that often at PoE. If that would have been a big concern, then USCIS should not approve any H-1 filed by an applicant on F-1.
PP petition is adjudicated within 15 calendar days. So if no RFE is issued, then it would be approved by end of April, else it will depend upon how soon RFE response is submitted.
Thanks Boss! It was real help.
Hi saurabh,
I am currently working on H1B cap-exempt quota in a University. I am planning to move to a different university and I have got an offer to start in June. I have to leave to India for a personal trip at the end of this month. I have to get my H1B stamped when i am in India. Is it advisable to file for transfer of H1b when I am in India? The process of transferring my H1B has not yet started.
Chandra,
Do you plan to go for stamping through old employer or new employer? If new employer, then it’s better to get it approved first and then go for stamping. When you leave US and H-1 transfer is pending, then your petition will get approved w/o I-94. You will get I-94 on returning to US based on the I-94 you show at PoE, which may be from old employer.
As both employers are universities and cap-exempt, I don’t see any issue from quota perspective.
Hi Saurabh
My plan is to go to stamping through the old employer only. The process of transfer with new employer hasn’t yet started. It might take a couple of months and I need to go to India soon.
Hi Saurabh,
I am working in one of the MNC company in india, they are processed my H1B, i got the Visa also
but they are not willing to send the onsite.
But my H1B pettion is valid till March 10, 2013 only.
My Question is : If My indian employer not sending to the onsite , can i go to USA individuvally or i have to wait till my employer sent to the USA.
Tell me any options availble in this.
Vaishnavi,
You need to find another employer, then ask them to file cap-exempt petition for you (aka H-1 transfer) and once approved travel to US to work for the new employer. You cannot travel to US unless you have approved 797 from an employer willing to call you to US. No new visa stamping is required as long as previous visa stamp is still valid.
Hi Saurabh,
I am holding H1B (exp 30-sep-2013). I have changed my employer recently. They filled for H1B transfer.I got the receipt Notice(I797). But i am waiting to get the approval notice(I797). Now I am trying bring my family to usa. I did complete ds160 for my family (H4). When I try to get the date for interview, i figured that i need to enter the petition start date and expiry date.
Can i enter petition expiry date as 30-sep-2013?
Do i need to enter my correct I797 petition number and previous I797 petition no?
Please give some explanations,
Thanks,
Nandhini
Nandhini,
Are you still working for old employer? If yes, then your family can go on basis of old petition and enter its information in the DS form. If you have started working for new employer, then I would suggest to get its approval and then send them for stamping.
Thanks a lot Saurabh.
I am working for the new employer for the past 2 months and i think i will get the approval notice in another 2 months.
1.Is it legal and possible to get H4, if I follow like this?
I enter my petition no , start date and end date of the the old employer petition, Then My family go to the interview(H4) with my old employer approved petition and new employer petition notice and new employer appoint letter and new employer’s employment verification letter.
2. I have to wait for the H1B petition approval and send my family for H4 interview?
Please give some suggestions.
Thanks,
Nandhini.
Nandhini,
I would suggest following option #2 – wait for approval and then send them for H-4 interview. It is possible that officer requests employer related documents at the time of interview, and so it is better to take the petition of the employer you are working for – so that they can submit the documents in support.
Hi,
I have my H1-B expiring on May 7th, 2012. But in I-94 form, the date of expiry is May 17th, 2012. Because of some personal constraints I couldn’t travel to US before and I just reached here on March 26th. Process to file an extension is underway by my employer. My wife is an Indian working with one of Indian IT firm in the UK. This is the current scene and I have following queries.
1) How much time it would take to get an extension approval if the employer goes for Regular Processing?
2) Can I file for H4 for my wife before my Visa extension ?
3) Can she appear for H4 Visa interview in London?
Thanks,
Abhilash
Hi,
Also I would like to know the H4 processing duration. Please help me.
Thanks,
Abhilash
Abhilash,
The only H-4 processing required is to go for H-4 visa stamping, as she is outside of US at the moment. If approved, stamped passport will be received within 1 week, else it can take weeks or months.
Abhilash,
1. It can take 2-6 months (not counting RFE time)
2. Yes, but as H-1 is expiring soon it may not be the best idea. Once your H-1 gets extended, she can take the extended 797 for H-4 interview and then travel to US.
3. Yes, she can. However, she should check w/ US consulate in London about it.
Thank you Saurabh.
Hi,
My Fiancee is on H1B since 3 years. He recently got his extension for another 3 years. But he can not visit India for next 1-1.5 years. So we plan to get married in US itself, while i will travel on B2 and change status to H4. But We were wondering if it will be legal one ? Because we do not want to commit any action that is against US laws.
Also, if it is legal, and later i found any H1 sponsor, can i change H4 to H1, as stamping will not be there on my passport. But ONLY if its legal process.
Kirti,
Will you have to go for B-1 visa stamping? If yes, then you will be questioned about the purpose of the trip. Your current purpose qualifies you as an immigrant (H-4 is a dual intent visa while B-1 is a non-immigrant visa), and could lead to denial. The officer can say that your fiance should return to home country in order to get married instead of you going there on B-1 and then moving to H-4.
In case your B-1 gets approved, you can file COS to H-4 (I would suggest doing this after staying 60-90 days on B-1). The process can take 2-3 months. Later, you can file COS from H-4 to H-1 (completely legal).
Hi Saurabh,
Thanks in advance for such a great help to everyone in the forum… I have a query & need your help in clarifying… My wife is in US on H1B. I’m in US on H4 for couple of weeks on. I have an employer in US who is ready to sponsor my H1B while I am in India (as I am going back after 2 weeks) under the quota. My question is – Can I travel to US once again on H4 once my H1B Petition is approved & ready to Stamp? (assuming it gets approved) and start working in USA (as now I will have my H1B petition approved)? Can my employer apply for COS from H4 to H1 when I am in US?
Or will my H1B approved petition will get rejected the moment I travel to US on H4? Please help me, looking forward for your reply. Thanks!
Regards,
Ram
Ram,
Traveling to US on H-4 will not invalidate your H-1 petition. It will continue to get processed. Once approved, you can either file COS from H-4 to H-1 or go out of US to get H-1 visa stamped in the passport.
Hi Saurabh,
Thanks alot for your response… I want to know, say if my H1B petition is APPROVED when I am in India can I travel to US on H4 (as I already have H4 Visa)? is it safe? will it not cancel/invalidate my approved H1B petition? Please confirm. Thanks very much…
Regards,
Ram
Ram,
It will not invalidate your H-1 petition. It will still remain valid, but your status in US will remain H-4 and not H-1.
Hi Saurabh,
Thanks a ton for your valuable suggestions…
Yes, I understand that my status in US will remain H4 not H1 unless I apply for COS from H4-H1 or go out of US & get my H1B stamped.
But I assume that once my H1B petition is APPROVED say by Sept-2012 (while I am in India) I can travel to US on my current H4 and I can start working as I have a valid H1B petition approved.. isn’t it? Kindly Confirm. Thanks alot.
Regards,
Ram
Ram,
No you cannot. Your COS is abandoned, so your status would continue to remain H-4 even after Oct 1. Having H-1 petition doesn’t automatically change to H-1. You need an approved COS to H-1 in order to be on H-1. Does that clarify?
Hi Saurabh,
I am bit confused here, please confirm on this –
1. Currently I have valid H4 Visa.
2. Say my consultancy will file for my H1B petition under 2012 quota WHILE I AM IN INDIA.
3. Once my H1B petition gets APPROVED (assuming it will), can I enter USA on my existing H4B VISA?
4. If yes, Can I start working in US (as I have approved H1B petition)?
Please confirm on this. Thanks in advance!
Ram,
There are 2 things required to work in US on H-1:
– H-1 petition, this is when you have an approved 797
– H-1 visa status, this is when your latest I-94 is stamped as H-1
As your H-1 would be filed while you are outside of US, you will have only one I-94 which you will get when you entered US on H-4. As such, your visa status in US would be H-4 and you cannot work on H-1 even though you have approved 797 petition. You need to file COS (change of status) from H-4 to H-1 and then work on H-1.
Hi Saurabh,
Iam h4 visa holder.now i want to apply h1b visa 2012 APR .I can apply premium processing or normal processing,which one is correct ………..pls give me replay.
one of my friend saying…apply premium processing…….what is better for me…..pls give me replay…..
sreenivas,
Applying w/ PP only speeds up the process. Even when applied w/ PP, it will not become effective until Oct 1. What you can do is file under normal processing and if it doesn’t get processed by say Aug, then upgrade to PP so that you have the result by Oct and can start working on H-1.
Hi Saurabh,
My H1B sponsor applied for H1B with premium processing,under quota exemption and also for H4 for my wife at the same time.We got the receipt nos. and today ,when we check the status from the USCIS site, the H4 is approved and H1B is still in ‘Acceptance ‘ status.What does this mean? Does this mean my H1B is also approved and the Site is not updated. Or H1B is still not approved.
Also for H4 it says it is received on Mar 28 and for H1 it says, it is received on Mar 29.
Can you please advice how we can know, the exact status?
Bunny,
In case of PP petitions, the online status is not updated immediately. Wait for few days to see if it gets updated. Else, follow-up w/ your employer if they have received any notification about the H-1 processing.
Thanks Saurabh.
I checked with my employer, and he didnot receive any confirmation.
So, My question is :
Is H1B and dependant H4 have independent processing of each other ?
I was under the assumption that H4 can be approved only after H1.Looks like it is not the case? Can you please explain on this?
Bunny,
Usually they are not, and H-4 approval is dependent on H-1 approval. So if H-1 gets denied, then H-4 dependent should also treat it as if H-4 has been denied. As it is filed w/ PP, you should know H-1 decision within few days and it will provide more clarity.
Saurabh,
I’m currently on a H4. Since I cannot work until 10/1 even if I get a H-1B I was wondering if I could get a F1 visa then can I start working immediately on OPT and attend college in the evening ?
If this is possible, What are the advantages and disadvantages ?
Alternate Jones,
I don’t think you can immediately get OPT after enrolling in college. You will have to check w/ specific school about the policy. Besides, you are adding too many variables in the equation – you are trying for H-4 to H-1, and then H-4 to F-1 and then F-1 to H-1. I would suggest staying away from it. Besides, the intent of getting F-1 for the purpose of working until Oct is a misuse of F-1 visa.
Saurabh,
Thanks for being of such great help to everyone here. I have this query that I needed help with. My wife came to US on H4 while her H1 petition (filed by her Indian employer) was still in process. Assuming her H1 gets approved, does she need to go back to India for stamping before she can start working here? I am assuming the employer will need to file for COS before she can work. Can we file COS or is that something that employers are supposed to do?
Thanks for your help,
Regards,
Prashant
Prashant,
As the petition was filed while she was out of US, her status would remain H-4 even after the approval. The employer can then file COS from H-4 to H-1 and she can start working on H-1 from COS approval date. In case that is not filed or approved, the other option would be to get H-1 visa stamped from a consulate and return to US on H-1 visa.
Saurabh,
My wife applied for COS from H4 to H1 in 2010 and got it approved. She was on H1 status and was employed since Oct 2010 until she went to India. She is in India now and her H1 visa has been denied. She is returning to US on H4 visa.
1. If she gets a job and her employer applies for her H1, will the new H1 application be subject to 2012 cap, as her H1 visa was not successful?
2. Can she start working immediately once her new H1 is approved? or, does she need to wait until October 2012 ?
Thanks,
Bharath
Bharath,
1. No if the petition is still valid and has not been revoked by USCIS as part of H-1 visa rejection
2. If she is able to file cap-exempt petition (refer 1), then she can start working from H-1 COS approval date, which can be earlier than Oct 1.
Hi
Recently, my husband’s HR notified him that his L to H conversion was approved. We understand from his approval notice that his H is effective from 3/16/2012. But i am still on L2 visa with avalid I94 and no cos was filed for me.
In this circumstance, please advice:
1. If I’d lost my L2 status as of 3/16/2012 though my L2 I94 is still valid?
2. Can my husband’s employer file for an L2 to H4 conversion now?
3. Is it better to go back to country and get a new visa stamped?
I’d highly appreciate your early advice in this regard.
Machan,
Why didn’t they file COS for you along w/ his conversion?
1. Yes, you are no longer in valid status.
2. They can try, but it might already be too late.
3. That looks like a better option to me. You can check w/ your attorney as well about the chances of successful H-4 stamping.
Hi Saurabh,
My wife is in US on a H4 Visa and applying for an H1 in next 10-15 days with COS. However she need to leave India in July end and will again go for H4 Stamping and return sometime in Aug end.
Question: If COS is approved before she leaves India, can she return to US with a recently stamped H4 Visa and start working from Oct 1 on H1 with the approved COS ? or she need to get the H1 stamping in order to start working with new status?
Also while leaving US, does she need to return the I-94 attached to the new petition ?
Appreciate your help on this.
Thanks
Vikas
Small Correction:
Question: If COS is approved before she leaves for India, can she return to US with a recently stamped H4 Visa and start working from Oct 1 on H1 with the approved COS ? or she need to get the H1 stamping in order to start working with new status?
Also while leaving US, does she need to return the I-94 attached to the new petition ?
Vikas,
If her COS gets approved prior to leave for US, she can return on stamped H-4 visa and then be on H-1 from Oct 1. However, if she leaves prior to COS approval, then her status would remain H-4 even after Oct 1.
Thanks Saurabh
Hi Saurabh,
My 2nd Question: If we get the H1B approval with approved COS before leaving US. Say we get the approval in June and leave US in July , then do we need to return the I-94 attached to the I-797 for COS, at the airport while leaving US.
If yes, then while entering US in August 2012 on H4, we will be issued a new I-94 i believe as per H4 validity. Then as per this new I-94 issued at POE against the H4, will the COS be still effective from Oct 1st?
I am basically confused around the I-94’s (1 attached to COS approval and other issued at POE) here.
Thanks in advance for your suggestions. It always helps to visit this site for any Visa queries.
Thanks
Vikas
Vikas,
IMO, you can keep the one attached w/ 797 w/ you, but return the I-94 issued when she first entered US on H-4 visa. Yes, a new I-94 would be issued when returning on H-4, but her COS would still be effective from Oct 1. You can confirm w/ an attorney as well.
Thanks Saurabh !!
Hi Saurab,
First of all, I appreciate your efforts in helping others.
I have a quick question:
I am on H1B and recently got it stamped from India. I am planning to do MS (Masters in CS) starting May 2012, so will have to get my status changed from H1B to F1.
I am planning to get F1 stamped from Canada instead of just applying for a COS.
Can you please provide your thoughts?
Thanks very much.
Karan
Karan,
I haven’t seen several instances where a person has gone to CA to get F-1 visa stamped. Some people go there after COS to F-1, but I haven’t seen cases where they went for stamping prior to COS. Most of the people file COS, and it has a good chance of success as long as you have funds and approval from a good school. Why do you want to go for stamping instead of just COS?
Thanks much for the reply Saurab.
Actually, I heard that I have two options:
1) Apply for COS from H1 – F1
2) Travel outside US to get F1 stamped
The first option has no specific time limit on how long it is going to take, which is why I wanted to travel to Canada and get F1 stamped through the 2nd Option.
I am actually little confused on which is going to be the best option for me….
Karan,
Well, you can enroll in the school on H-1 and once your COS gets approved, get enrolled in F-1 from next quarter/semester. Are you considering this option?
Hi Saurabh!
Yes, I am considering that option. However, I am not clear with the Pros & Cons of each option.
Here are my thoughts –
– My program starts in mid May and I “may” have to serve a notice period of 2-3 weeks with my employer as well. I was thinking of having my last day as close to my Program start day as possible so I could save some bucks for my education 🙂
– The above option (according to me) is only feasible if I go for the COS option?
– If I decide to go for stamping from Canada, I may have to save some buffer just in case the stamping is delayed for some reason.
– Above all I am not much clear about the steps for getting F1 stamped (in my case when I am in US and have an H1) Do I still have to file for a COS? Can you please share some link with me?
Karan,
If one has more confidence that stamping would be successful then stamping is a preferred option as it will be faster. How about this, you go for F-1 visa stamping and if denied return back to US on H-1 and then decide to file COS from here. If approved, still return back to US on H-1 to serve the notice period (assuming H-1 is not canceled by the consulate). Once you have served the notice period, travel out of US and return on F-1 visa to enroll in the school.
However, this requires lot of things to fall in place. You can check w/ an attorney as well on best course of action.
But isn’t that during the visa interview, the consulate would like to see my Employment letter? And don’t they always cancel the H1 if they stamp F1?
Thanks much!
Karan,
I didn’t get the question about the employment letter.
It is VO’s discretion whether to cancel the H-1 or not. It is safe to assume that they will cancel the H-1 visa in case of F-1 approval, but in case of F-1 rejection, they can leave the H-1 visa stamp as is.
Hi All,
My wife has 7 year of experience in IT technologies. She will be coming on H4 with me but she don’t want to lose her
career. Somebody told me that person on H4 can apply for EAD and will be allowed to work on any of the IT firm.
Please put some light on this?
PS,
At the moment, there is no rule/provision that allows H-4 visa holders to work on EAD. There was a news from DHS on the same, but since then they haven’t clarified what dependents will be covered (all or those for which GC I-140 has been filed etc) or when it will go into effect. Unless there is more clarification from DHS, one cannot guess if it would EAD for all H-4 dependents, or there will be an eligibility criteria.
Hi Saurabh,
Is COS in US from B2 to H1b itself a problem in getting stamping in home country later on.
Sonal,
Yes, one can be questioned in future about it. If you had to stay for 6 or more months to move to H-1 from B-1, then you can be asked why you stayed the extreme duration. Although USCIS would have already looked at the reason while approving your COS from B-1 to H-1, yet the consulate can still raise same concerns.
Currently I am holding L1 Blanket Visa through my employer in USA. Now I want to apply for F1 Student visa for part time higher study in USA. I need your valuable assistance on the following:
1. Can I apply for F1 Visa at this stage?
2. If yes,
a. What will happen to my L1 blanket visa? Will the visa become void once my name gets enrolled in SEBIS/ after getting I20.
b. What are the terms & conditions and process to apply for F1?
3. What happens if I apply for H1B this April being on L1, once it is approved I initiate COS to F1,Does my H1 visa gets canceled if I change to F1?
Would be highly obliged if you provide me your valuable assistance for the above mentioned queries.
Saakshi,
1. Yes
2
a. Your status would change from L-1 to F-1. You can no longer work but can only study on F-1
b. Find a college, get I-20, fill SEVIS fees and then apply for COS (change of status form I-539) from L-1 to F-1
c. Your status would change from H-1 to F-1. You can go to H-1 status in future, by filing F-1 to H-1. In other words, it becomes dormant and can be reactivated by filing COS from F-1 to H-1 or entering US on stamped H-1 visa (same goes for your L-1).
Hi Surabh,
Thank you very much for the response.
So if i Go for once i receive I20 , fill fees for SEVIS, during this period i still have valid L1 Status right, unless I apply fro COS to F1.
Reason why am asking is – i have to serve some notice period , which i want to do once I receive I20 to ensure that i have admission and can go for COS.Hope you understood what i am trying to convey.
Does getting SEVIS number mean you are not eligible to work on L1?
Saakshi,
You will be on L-1 status until your COS to F-1 gets approved. Until then you are considered to be on L-1 status and need to work on L-1 to maintain that status.
If you resign from current employer, will then ask you to go back to home country? For example, you resign after filing COS and it gets processed in 2 months. Meanwhile, your L-1 employer asks you to leave US, which if you do would abandon your COS.
Hi Saurabh,
Thanks for all that help you are providing. I have a quick question regarding L1B to H1 visa transfer.
a)I came here to US in June 2007 on L1B visa through company A .
b)I applied for H1B in 2009 quota through other company B and received an approved petition till Oct 2012. Since that was not with COS, i never bothered to move to company B and stayed back with company A on L1B.
c)Now my L1 stay of 5 years is getting over in Nov 2012(Including outside US stay) and i am thinking of moving back to H1B filed by company B to be able to work for one more year.
d) If i want to move to company C through H1B Transfer from company B, Is that a possibility ? I never worked with Company B and never had any pay stubs from them. They just filed my H1B petition. Now is it possible to move to company C on H1B transfer.
Please let me know.
Thanks,
Chaits
Newyorker,
Yes, C can file H-1 transfer for you. They will have to file H-1 transfer along w/ COS from L-1 to H-1. To approve, USCIS will need to confirm your current status which is L-1. H-1 payslips are required only when your current status is H-1 at the time of H-1 transfer.
Hi Saurabh,
My wife’s H4 visa (through an cap-exempt employer) was approved yesterday at the New Delhi Embassy. The interview was fairly very simple, and no major questions were asked apart from how we met each other. I have a couple of questions now:
1) The interviewer kept my original I-797 Notice of Action form along with my wife’s passport. I called VFS, and they say the notice of action will be returned along with the passport. Is this normal?
2) My new employer is going to apply for a new H1-B application (cap-subject) on 2nd April next month. My wife is traveling from India to US by mid-April. The new application would most likely be under ‘pending’ status (even though it will be a PP) when my wife enters into U.S or at the POE. Is this could be a problem? I would imagine she should not have any problems, as long as I am lawfully maintaining my other H1-B status? The other H1-B status is valid until 2014 and wont be withdrawn by 1st week of June? Kindly let me know what your thoughts are?
Thank you.
Sincerely,
Vipul
Vipul,
1. Yes, that’s the standard practice
2. It would be ok. Will you be working for old employer or the new employer? If old employer, then it’s fine. If new employer, it’s better to have documentation related to new employment as PoE may decide to follow-up w/ employer on your employment. It doesn’t happen often, but it is something that can happen.
Hi Saurabh,
Thanks for the reply.
1) I sent an email to VFS yesterday, and they said that normally they wont keep the originals but in case they did, they return it with the passport.
2) I will be still employed with the old employer, and I assumed it would be fine. The new employment does not start until 1st May. I am just worried what if this has an impact on the adjudication of the new application. Could it be taken as RFE? So in a sense, the officer at POE could consider this as concurrent employment?
I am more curious when you say PoE following up with the employer? How do they do that? While you are still in the airport clearing immigration?
Sincerely,
Vipul
Vipul,
1. As far I have seen, they have always kept the original 797 when approving the visa stamp. They may return it when issuing 221g, which is not your case.
2. It should be fine as long as you are working for the old employer.
They can take the person for secondary inspection (if they have doubts) and do a more thorough check by calling employer/client etc.
Hi Saurabh,
My wife received the original I-797 with the passport. Thanks for the help.
Sincerely,
Vipul
Hi Saurabh,
I am on L1 VISA with company (A) and another Company (B) filed H1 with COS and it was approved on March 9th 2012. How many days I can still work Company A on L1? I heard that 30 days or 45 days period will be ok with company A before I start working with H1 employer (B). Please let me know how many days exactly I can work with Company A.
Thanks a lot,
Suresh
Surya,
Legally, one should start working for H-1 employer from COS approval date. Anytime spent w/ L-1 employer thereafter puts you in a questionable area. USCIS can question about this in future, and you will then have to provide them a plausible reason. Staying for 1-2 weeks is ok, but anything more than that is a big risk.
Hi Saurabh,
I am in the process of changing jobs and my new employer has sent me LCA. However the job title doesn’t match with the offer letter.
will this be an issue for the USCIS for H-1B transfer ?
also the attorney has told my employer that I can start working since my LCA is issued and he has asked me to resign from my current employer.
Dynamad,
Usually LCA titles are more aligned w/ DOL title categories to know the minimum salary. On the offer letter one can have a different title based on employer’s org structure.
Do not join the new employer on the basis of LCA. The earliest you can join them is after petition has been received by USCIS. Thing you need to watch out for is in case of H-1 denial, you will either have to go back to old employer or have another employer file H-1 transfer for you.
Hello Saurabh,
Would it be really helpful if you can clarify my question.
1.My company would file H1B for the current year .Believe wud file mypetition sometime in May.
2.My husband is already in US on a H1B.I am planning travel in H4 sometime in june avail LOP with my employer.
Please let me if my petition get approved in Oct,do i need to come again for stamping.
Travelling in H4 affect my H1B processing in any way?
Manju,
Once your H-1 gets approved and you are already in US on H-4, you can do either of 2 things:
1. File COS from H-4 to H-1
2. Go out of US, get H-1 visa stamped and enter on that visa
Traveling on H-4 while H-1 is processing will not impact the outcome of the processing.
Thanks a lot saurabh.Now things clarified that I wud not require to come all way down to get my stamping 🙂
Hi Saurabh,
I am on L1B visa working for indian consultancy firm, I have been asked to put in extra hours say about 60 to 80 hrs per week. Am i entitled to get extra pay for all the extra hours to put in?
Appreciate your quick response.
Anil,
See my response to your other post w/ this question.
Hi Saurabh,
I am currently on a L1A B visa and plan to apply for a COS to H1B this year. My question was that I have stayed till date in US on my L1A visa for 3 years and the Visa stamped on my passport has expired early this year, but my petition being blanket is valid and so is my I-94 and I am legally allowed to work on my L1. In this case am I eligible to do a COS to H1B or not?
Akshata,
Yes you are eligible for file H-1 w/ COS as you are maintaining legal status in US.
Saurabh,
My wife was in the US on an H1-B visa from 2007 Jan to 2009 Dec. She was than outside the US (in India) for more than year from 2009 Dec to 2011 Feb. She came to US on an L2 Visa in Feb 2011 and has been here since then . She is currently in the US now and wants to change her status to H1. We understand that she can apply for a cap exempt H1-B, right away, given that she held an H1 status in the last six years but our question is – Can an employer file a cap exempt H1-B petition for her even if she was outside the US for more than a year in the last 6 years ?
Alex Jones,
Yes, it can still be filed. The downside is that she will be eligible for 6 years – time spent on L-1 – time spent on earlier H-1. If she goes for cap-subject H-1, then only the time spent on L-1 will be deducted from the 6 year clock.
Hi Saurabh! You are doing a great job! I would highly appreciate your input in answering my query. I am currently on an F1 Visa which expires in August, 2012. I am working under my OPT which is expiring in July, 2012. Now, I have been reading loads of discussions but still seem to be confused. If my employer files an H1B petition in April and (hopefully), it gets approved, am I still able to work under Cap-Gap despite of the fact that my visa would expire in August?
Can I get my H1 stamping in Canada or should I go back home to do the same? Please advise.
Thanks much!
Gurpreet Kaur,
You can continue to work until Oct 1 or H-1 denial date, whichever is earlier based on:
– H-1 filed w/ COS w/ start date f Oct 1
– you are maintaining legal F-1 and OPT status at the time of filing
When going for stamping in future, you can go to CA as well; however it would be prudent to have contingency plans in case visa is rejected/refused.
Hi Saurabh,
Just browsing through the VFS website, I see that ‘certain’ H1-B applicants (employer with more than 50 H1-B employees and with more than 50% employees with H1-B) need to pay an additional $2200 when stamping in India under Public Law 111-230. What does this means? Does it stand good for approved petitions as well for the principal applicant and their dependents?
Since, my employer does not satisfy this criteria, I am assuming this fees does not matter actually. So, basically during stamping, only the HDFC receipt fees is supposed to be paid and nothing else?
Sincerely,
Vipul
Vipul Modi,
If your employer doesn’t qualify for this, then no additional fees need to be paid. You can just go for H-1 visa stamping after submitting HDFC fees. No other fees are required.