Change of Status COS FAQs

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

In US Immigration - Visas by SaurabhUpdated : 1313 Comments

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.

Can I travel out of US when COS is pending with USCIS ? Implications ?

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.

What is Change of Status ( COS) in short ?

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.

Can Change of Status (COS) be applied when you are out of 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.

Will COS Abandonment with Travel out of US impact my Visa Stamping ?

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 ?

   

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Comments ( 1,313 )

  1. Evelyn

    Hi Saurabh,

    I have couple of questions. Not sure though if this is the right thread to ask. Pardon, if I am asking the wrong question at the wrong place.

    Q1. My salary in LCA is different from my actual salary currently. I understand it’s ok if my current salary is more than my LCA salary. But it’s the other way round. My current salary is lower than my LCA salary. I applied for H1B in 2014’s cap and got ‘Approved’ this morning. It’s a standard LCA. So your thoughts on this.

    Q2. I am currently in L2 EAD till my status changes to H1B on 1st oct 2013. My husband is in L1 and also applied for his H1B in 2014’s cap this year. (we did not hear anything yet on his petition though). Now, in June 2013, my employer will apply for my GC, most probably under EB2 category. My question to you is, how can I add my husband too. I mean should we apply our GC separately from our respective companies or is there a way I can tag him along in my application.

    Sorry if I sound naive, pardon my ignorance.

    Thanks for your reply.

    1. administrator
      Saurabh

      Evelyn,
      1. Once your H-1 goes into effect from Oct 1, your employer should start paying you at least the LCA amount. They can continue to pay lower salary until then, but they are legally required to honor LCA amount from Oct 1.
      2. Spouse can be added on GC application during I-485 filing. If you are from one of the backlogged countries like India or China, then it may take few years before you can file I-485. Until then your husband needs to maintain his own visa status.

  2. Viva

    Hi Saurabh,

    I have a question..I am on H4 right now and my H1b is approved and effective from Oct 1st 2013.
    1. Can i travel to india before Oct 1st?
    2. I have to get my H4 visa stamping done when i go this time, will this be a problem?

    1. administrator
      Saurabh

      Viva,
      1. Yes
      2. No, your H-1 approval should not impact your H-4 stamping

      If your H-1 was approved w/ COS then you can return prior to Oct 1 on H-4 and still be on H-1 from Oct 1 (the approved COS doesn’t get abandon if you return prior to Oct 1). Keep the I-94 in your H-1 797 notice w/ you and return the one in your passport when leaving US. You can check w/ your H-1 attorney as well.

  3. Abi

    Hi,

    I am currently in H4 and applied for H1b. My H1b petition got selected in lottery. I have applied in Regular processing w/COS from H4 to H1. My H4 is getting expired in Oct 2013.

    My husband company is applying extension for him and also for me. My question is will this affect my H1b processing. Will COS have any impact becoz of this?

    Say my H1b got approved in Sep w/COS and H4 extension got approved in Oct.
    So i will be in which visa from Oct? Do i need to apply for COS from H4 to H1 again?

    1. administrator
      Saurabh

      Abi,
      Did you ask similar question in Q&A forum or elsewhere on the blog? I remember replying to similar question.

  4. neha22

    Dear Saurabh,
    I am on H3 and filed H1B this year and got reciept.
    My questions are:
    1) I am planning to travel India in last week of may-July. This time i have to go for H3 stamping. Can I go for h3 stamping in June if my new h1b get approved before my India visit?
    2) Do i need to change my H1b application under PP?
    3)Can I go for h3 stamping when h1b process is pending?

    Please answer asap.

    Time is of the essence

    Thanks

    1. administrator
      Saurabh

      Neha22,
      1. Yes
      2. Not required, but if you want to get it approved before leaving US then you may have to upgrade it to PP. Lot of petitions have been filed and your petition may not get processed before your visit outside US.
      3. Yes (same as 1). You need to have all H-3 documentation for this.

  5. Senthil

    Hi,

    I have applied H1b w/COS for my wife who is currently in H4 visa. Regular processing and she got selected in the lottery.
    Now she is planning to travel to india and come back in Jul.

    I think h1b may get approved without COS. After H1b approval can we apply for COS in PP?

    How long does it take?

    1. administrator
      Saurabh

      Senthil,
      I don’t think just the COS can be applied in PP. It will have to undergo normal processing which can take 2-3 months.

      1. Senthil

        Saurabh,

        Say if i dont travel to India…

        My I 94 and wife’s I 94 are getting expired in Aug 10. They gave I 94 only till Aug becoz my passport was getting expired. No i have renewed my passport. I have valid visa till Oct 2013. Do i need to extend her I 94? Will it cause any issue in her H1b processing.

        Will COS gets rejected?

        1. administrator
          Saurabh

          Senthil,
          Her H-1 will have a start date of Oct 1. So there will be a gap in I-94 continuity from Aug to Oct. To cover this, her I-94 extension is required. In addition, USCIS may also ask for I-94 continuation proof as part of COS approval.

          That is why it is important to get her I-94 extended once you get your own passport renewed. Also, your own I-94 needs to be extended if you plan to stay and work beyond current I-94 expiration date. You need both I-94 and 797 in order to stay and work in US on H-1.

  6. Tinag D

    Hi Saurabh,
    I got selected in this year’s crazy H1 lottery system. AD,RP, CSC. I ll be changing from F1 (OPT stem) to H1 on Oct 1st 2013. m inviting my wife and kids next month on F-2 (since m on F1 right now). Is that ok? Then in October, I have to change their status from F-2 to H4, right? Is there a deadline for that, so that I have to apply for their COS before October? What would be the fees for their COS from F2 to H4? Can I tell my company to pay the fees if that is something common?
    Thanks

    1. lakshmi

      hi Tinag.. i also applird forH1B bt do not have any updates from employer yet

      could u pls let me know did u apply with premium processing and how did u get to knw that u were selected..did ur employer inform u or u receivd an email..

      it wud be really helpful if u can provide me this info.. thnx in advance..

      1. Tinag D

        sorry to hear that. But have patience. You still have time, and m sure your attorney ll hit you with good news. Mine is advanced degree, regular processing, California service center. My company’s attorney informed my HR and she forwarded the receipt number like two weeks ago. Did you apply from abroad or you are already working here on OPT?

    2. administrator
      Saurabh

      Tinag D,
      Does you family need to go for F-2 visa stamping? I don’t know the chances of success of that.

      But if they already have F-2 visa stamped, then they can enter on F-2 visa. They can file for COS soon after your H-1 COS gets approved. The typical processing time is 2-3 months, so its best if they file it by July.

      Big employers usually take care of immigration costs of their employees and their families. Check w/ other immigrant employees in your firm if the employer did pay for their families. If so, you can take it up w/ your manager or HR or immigration contact.

      1. Tinag D

        Hi Saurabh,
        Thanks for your response as always. You guided me a lot. Remember? Last year, I missed my H1 by a day when I just got my LCA and I was on OPT & my former company not e-verified. You advised me to move on to e-verified company and complete my MS degree & try this year. I moved to an e-verified company, got my MS degree in Dec 12, & applied my H1 this year. Luckily I got selected in lottery in this crazy H1 year :). Thanks for all your guidance. My wife & two kids are back at home. We don’t have US embassy in my country so m planning to send them to Kolkata, India for visa interview. Since I ll be on F1 (OPT stem) till October 1st, 2013, I was thinking I ll bring them on F2 & then change their status to H4 here when mine changes to H1. I can bring them in Dec directly on H4, but the school here starts in August and I was concerned for my kids. I contact my University and they said they ll give all the documents to file their F2 visa. Do you think they can get denied on F2, since my employer has already filed H1? Once again, thank you Saurabh, for all your help and generosity on this forum.

        1. administrator
          Saurabh

          Tinag D,
          That’s a pretty long H-1 journey, but I am glad that it is finally settling down 🙂

          I don’t think H-1 approval will impact their F-2 interview. What can impact the outcome is the fact that you have already completed your Masters. But then you are on 17 months extension, and so it may work for you. Talk to your H-1 attorney as well about this.

          1. Tinag D

            Hi Saurabh,
            As you advised, I wrote to my company’s attorney and she was encouraging me to wait and get on H4 instead of F2 as it may complex the situation because my H1 ll kick in on Oct 1st 2013, and my family’s F-2 was on such a short duration, and may get denied, according to her.
            My H1 status today is showing “petition approved”. Therefore, I will wait and apply for their H4.
            Now,
            1. When can I schedule their H4 visa interview in Kolkata, India?
            2. When can they enter to US, if granted H4?
            3. My attorney wrote that my H1B duplicate copy was sent to US embassy in Delhi (where my country’s people should go for US visa interview). Will it be ok, to send my family to Kolkata consulate for visa interview if I send a hard copy of my H1B visa?
            Thank you Saurabh.

          2. administrator
            Saurabh

            Tinag D,
            1. 90 days prior to your H-1 start date i.e. after July 1
            2. After Sep 20th
            3. Yes, it is ok to go to Kolkatta

  7. Tinag D

    Hi Saurabh,
    Fortunately, I got selected in this years crazy H1 lottery. AD,RP, CSC. I ll be changing from F1(OPT stem) to H1 on Oct 1st 2013. m inviting my wife and kids next month on F-2 (since m on F1 right now). Is that ok? Then in October I have to change their status from F-2 to H4, right? Is there a deadline for that, so that I have to apply for their COS before October? What would be the fees for their COS? Can I tell my company to pay if that is something common?
    Thanks

  8. chicaggo60

    Hello,

    I am on f-1, applied for h1b( waiting for lottery approval and later processing approval)
    my gf is on h1b visa, company is applying for green card this month.
    so just wondering what will happen, to h1b if i get selected in lottery and
    we both apply for green card together.

    1. administrator
      Saurabh

      chicaggo60,
      GC process takes a while to get completed. She is still your gf and not your wife. Once you are married, she can add you as a dependent during I-485 stage (which itself can be several months or several years away depending upon backlog in your EB category and country of birth).

  9. RK

    Am currently in USA. What happened if two employers file h1b for me.
    Will there be any side effects? Is it legal? Please let me know.

    I am yet to decide.

    If both gets approved, on which H1 should I have to work?

    1. administrator
      Saurabh

      RK,
      Legally, they both can apply H-1 for you. If both get approved, you can decide to join either of them and decline the other one. The drawback is that you will have to make one employer unhappy as they would have spent H-1 fees on you and then you decided not to join them.

  10. Priya

    Hi,

    I got my H1b visa in Sep 2012. Its a COS from H4 to H1B. Could you please let me know the best place to go for my H1B visa stamping other than my home country. Whether Canada or Bahamas is a best option to go for first time H1B visa stamping.

    1. administrator
      Saurabh

      Priya,
      For first time stamping for people who haven’t done Masters in US, the best place is home country. Everywhere else you carry considerable risk of being denied interview.

  11. keerthika

    1) I have h4 stamped in dec 2012(till sep 30 2013) but as my husband cant travel till april end,i am planning to file my new h1(w/o COS) in april 2013(i have 5 yrs of IT exp in INDIA),if i travel to US in may 2013 on h4 can i apply change of status(as i just traveled after applying my h1,h4 was stamped before itself so there was no ideal status change after application of h1)

    2) Approximately how many days will change of status take to get the approval???

    3) Can change of status be applied before h1 approval itself or do we need to wait till h1 is approved??

    4)If my h1 gets approved in aug 2013 and change of status is applied(imagine i wil travel to US on h4 in may) in aug,and if its process even after sep, can i stay in US after sep 30 2013 as my h4 gets expired on sep 30 2013.

    5) Can h4 extension be filed when COS is in progress.IF no and if change of status in denied do i need to return back to india as i dont have any valid visa after sep 30 2013.

  12. Priya

    Hi,

    I joined an IT MNC in India after finishing my MBA and BBA in finance mejor. I worked in this company for 3.9 years on techno-functional managerial role and got L1A done and came to US in 2009.

    My company has approved to file GC for me this year (haven’t filed i-140 yet) however since there are lots of rejections in L1 visa extension , they are planning to file H1 this years as COS from L1A. Here I am playing multiple roles of manager, functioanal Lead, Technical Migrations/upgrades/analysis etc.

    My questions is that am I eligble for H1 under any of the Computer Technolgy occupations given that I do not have computer scince degree like MCA/BTech?

    Also , my current salary is not that high that could qualify for a managerial occupational codes as there avg salary is 100K+ and I am well below it.

  13. Jeff

    Hi Saurabh,

    I worked in company A with L1 visa. I quit that old job on 10/12/2012.
    Company B filed COS request for me on 9/20/2012, and COS request from L1 to H1 was approved on 10/15/2012. But I started to work for company B on 10/22/2012.

    Was that legal for me to stay in US from 10/13/2012 to 10/21/2012 without any job? I need to leave US for H1 visa stamping. Will this gap affect my visa application? Thanks a lot.

    1. administrator
      Saurabh

      Jeff,
      It wasn’t correct to stay in US w/o job after quitting L-1 and when you are H-1 hadn’t started yet. However, it was just for a week it should be fine and should not be a big deal.

  14. Mrunal

    Hi Saurabh,
    Thanks for your time and help in past.
    I am on H4 and filed H1B last year which got denied. Employer filed for MTR which is still pending(initial review). They are willing to file new H1B this year in mostly premium proccesing. My questions are
    1) Do they need to withdraw the MTR and then file new h1b?
    2) I am planning to travel India in June-July. This time we have to go for H4 stamping (as my husband got h1b extension last year). Can I go for h4 stamping in June if my new h1b get approved before my India visit?
    3)Can I go for h4 stamping when h1b process is pending?

    Please answer asap. I am loosing all hope as I am trying hard from 2 yrs and no success.
    Question 2 and 3 are really very imp for me.

    Thanks a lott
    Mrunal

    1. administrator
      Saurabh

      Mrunal,
      1. MTR withdrawal is not required for new filing
      2. Yes
      3. Yes, but know that in case your COS will be abandoned as you would have left US while H-1 was pending.

      1. Mrunal

        Thanks a lot for your quick reply Saurabh.

        Regarding MTR, i read somewhere that if you file new h1b case with same employer without withdrawal, it will be two cases running simultaneously for same employer. Employer told me same that he will withdraw the case first and then file new.
        What can be the purpose behind doing so?
        What in case (which will be very rare) if MTR gets approved after filing new H1 from same employer?

        Thanks again.

        1. administrator
          Saurabh

          Mrunal,
          In that case, you will have 2 approved petitions for same employer.

          I think the reason why they will withdraw MTR is to address the USCIS rule that an employer cannot file multiple petitions for the same employee. However, my understanding is that they are referring to multiple petitions subject to same cap so as to not improve the chances of making through the cap. Your first H-1 is already denied while the 2nd one is subject to another cap, so it may not fit.

          However, if your employer has more confidence in new petition than in MTR, they can withdraw MTR and go w/ new petition.

      2. Mrunal

        In case when new H1B is approved and then I go for H4 stamping in India .
        If I return before October, Can I start working in October immediately? or anything need to be done like COS?
        I mean there won’t be any effect on H1 due to H4 stamping before October, am I right?

        Sorry for repeating the question, just want to make sure I understood properly.

        Thanks dear.

        1. administrator
          Saurabh

          Mrunal,
          If your H-1 is approved w/ COS, then you leave US, go for H-4 stamping and return on stamped H-4 visa prior to Oct 1, then you will still be considered on H-1 from Oct 1. No separate COS needs to be filed.

          Your COS will not be invalidated b/c of leaving US as it is approved for a future date and as long as you return to US prior to that date, it will still go into effect. Keep the I-94 that arrives w/ H-1 petition w/ you and return the one in your passport when leaving US. Also, confirm this w/ your attorney.

  15. Sonu

    Hi All,

    Need some advise URGENTLY.

    My wife is with me in US on H4. I need to get her H1 filed from here so need some advise.
    I have contacted some consultancy who are ready to sponsor H1B for her but asking for certain amount. I found 5-6 of them and all need Visa filing fee to be paid by us. That’s oK but my problem is:

    Once she has H1B approved, then they will search for some company where they can deploy you. And they will not pay you anything if you are on Bench. Now the question here is suppose she is on Bench for 3 months or so…then also we need to pay tax from our pocket which is again a catch…because you wouldn’t be getting salary for that time.

    So i need your advise / experience on this part like is there any way out of it or something. Should i go ahead for applying her H1B or should i not. I am confused.

    Regards!!!

    1. Anjali

      Hi Sonu ,

      Can you please let me know the genuine consulatants for filing h1b as I am in usa on h4 visa and not able to finalize a consulatant , all are asking for the money .

  16. Akki

    Background :

    I have applied for H1-B on Nov – 2009 through employer A and it got approved on Mar – 2010 . But I did not go for stamping and I don’t have any approval notice with me . I have only receipt number . I am not sure whether it is revoked or not . I came to US on LB Visa on Jan 2011 though employer B and my L1-B valid until Oct – 2013 .

    Queries :

    1 ) If I want to apply for H1-B , do I need to apply fresh 1 through 2013 cap quota ? ( or ) my old H1-B petition number can be used for COS?

    2 ) Do I need to contact employer A to proceed further ?

    3 ) If my H1-B can be done by using old petition number , what will be the validity of new H1-B ?

    4) If employer C apply H1-B for me using old cap, do I need to back to my home country and get the visa stame? (or) COS can be done within US?

  17. Jo

    Hi Saurabh,

    I have a COS query.

    Can my wife (on H4 valid for 2 more years) apply for H1B while in India. She is in US now but plans to go to India mid-march for 2 months. We plan to apply for H1B on 1st April.

    I approved (or in process), can she come back on H4 in May and then apply for COS from the US. Is that process tricky and will she have to go to a consulate here in US?

    Thanks a lot in advance – I will alter my travel plans if you suggest,

    1. administrator
      Saurabh

      Jo,
      Yes, this can be done. Once her H-1 petition gets approved, she can apply for a separate COS or go out of US, and return on stamped H-1 visa. The process is not too tricky, and people have done it in the past. She can also discuss this w/ her H-1 employer/attorney.

  18. aish

    Hi Saurabh,

    I have filled online I539 for COS from H1b to H4 yesterday 12th Feb. My last day with my current organisation is 14 th Feb. Couple of questions i have
    *Online cos submitted and i got receipt number also in online, but it never asked for my Spouse H1b documents, Fore.g payslips or his I94, His h1b petition number. Should we send this documents by ourself? or only in case of RFE we should send the required docs?
    *If they approve when will be my H4 start date? will it be on the day when applied or will be on the day Approved? Coz i got a info from my friend stating that they may ask for payslips will they approved? i have payslips till FEB 14th. But i will not be having the payslips from Feb 14 to the date they are going to approve. Will that be a issue please clarify?

  19. priyanka

    Hi,

    I am on L1 B visa working for an employer and planning to quit the job by this month end.

    If I file COS to H4 this week, what are the chances that my COS will be approved by this month end.

    Is there any way that I can give the date I want to start my H4 and quit my job on that day?

    Also, can you let me know if i have to submit only I 539 for COS.

    this is little urgent as I have to give 3 weeks notice to my employer. Please help !!!

    1. administrator
      Saurabh

      Priyanka,
      COS application can take 2-3 months to process. You need to maintain your previous visa status (i.e. L-1) until COS gets approved.

      I think you can mention a date in the COS application. However, if the COS is still pending and that date passes, then it will become effective from the actual approval date and not the requested date.

      For COS you need to submit I-539 along w/ proof of your husband maintaining his H-1 status (payslips, W-2, employment verification letter) and proof of you maintaining your L-1 status (payslips, W-2, employment verification letter).

      1. priyanka

        Thanks for the prompt response Saurabh.

        One more question:

        My L1 visa is valid till end of this year and I 94 till jul 2014.

        The problem now is I will be out of employment from March 1st. If I file my COS on Feb 15th, and get approved after 2 months and approval date is May 1st. What is my situation for this 2 months. Will I still be considered as legal to stay in US? if so, under which status?

        Can I stay in US on L1 without employment. Will there be any issue?

        Thanks,
        Priyanka

        1. administrator
          Saurabh

          Priyanka,
          Even though your I-94 is valid, you will be out of L-1 employment and not maintaining legal status in US. So you should be very careful when doing this. I would suggest talking to a good attorney to see if it will be ok.

  20. rkj

    Hi Saurabh,
    Currently i am working on L1-B ,i have plans to apply for H1-B through COS this year.
    Here are my questions:
    * COS is cap exempt ?
    * Is there any time frame the sponsor needs to apply for COS from L1 to H1?
    * If i am getting my COS approved before October 2013 then can i start work on H1-B for new employer without waiting for October 2013?

    Thanks
    rkj

    1. administrator
      Saurabh

      RKJ,
      1. H-1 petition is cap-exempt only if the person has held H-1 visa status in the past. COS or no COS doesn’t make a cap-exempt or non-exempt
      2. You have to wait until COS effective date (Oct 1 or later) before starting to work for H-1 employer.

  21. Pitsy

    Hi saurabh,

    I am having H1B visa and plan to travel to US around 25th March 2013 along with my wife (who will come on H4 visa along with me). There is an empoyer who wish to file H1b petition with COS for my wife, once we are there in the US. Is there any restriction that a candidate has to be present for some days/months in US before applying for H1B in COS.

    Please let me know. This is a bit urgent.

    1. administrator
      Saurabh

      Pitsy,
      There is no restriction but a guideline called 30-60-90 day rule. According to this, if the COS is filed within 30 days of entering US, USCIS can question the intent of the person i.e. she always wanted to work on H-1 but misused H-4 visa just to enter US and skip H-1 stamping. As the person continues to stay in US, this concern may get subdued and after 90 days it is non-present.

      Having said that, USCIS has been lax w/ H-4 to H-1 COS filings and should not raise an issue. They are more concerned about B-1 to H-1 COS as B-1 is a pure non-immigrant visa. So in the end, it may be ok to file in April and enter in March, but still this is something you should be aware of and need to discuss w/ potential employers.

    2. anony

      Hi Pitsy,

      i am looking out for a reliable emplyer who can file my H1b, can you pls guide me how you tried out m trying since 1 year in US..
      Others who has filed it pls help n guide me to file H1B my id is ps0201 at yahoo dot com

  22. Ceasar Ryan G. Asuncion

    Hello everyone. I need an advise. I am worried because I am on my 6th month now as J1 visa holder. On July 2013, my visa will expire. Is there also a possibility that I can change status from J1 into H1b visa without going back to my home country Philippines? I am currently looking for hotels who are sponsoring or petitioning H1b visas. I would be grateful for those who will give me replies and advices. Thank You 🙂

  23. yeshoda

    Hi Saurab,

    I’m on L2 EAD and has an H1B petition filed. Received an RFE and is planning to respond to it on Dec 17th. However my spouse (on L1B) need to go back to India next week and appear for PA for (L1A stamping) in January 2013. If I exit the country when my H1B petition processing is on, will the H1 Bpetition abandoned? In case it is approved before my L2 stamping, can I choose to return on L2/H1B ?

    I absoultely need to travel to India along with my spouse. If exiting during H1B processing is not recommended(chances of getting the petition abandoned)- is there a way to stop/withdraw H1B application? If I do that- will I not eligibale to apply for H1B next year? Especially when I recieved an RFE and didnt respond and left country. How it will effect my Change of Status for future H1B Application ?

    Please suggest what’s the best option.

    1. Leave country without withdrawing and answering the RFE
    2. Leave country without answering the RFE
    3. Leave country after Withdrawing the petition and file fresh H1B in april 2013

    Thanks & Regards,
    Yeshoda

    1. administrator
      Saurabh

      Yeshoda,
      If you leave US while H-1 is pending, then COS would be abandoned while H-1 will continue to be processed. You can return on L-2 visa and file for COS from L-2 to H-1 at a later stage. No need to go through cap again in this case.

      If you really need to travel then that’s what you should do, else you can stay behind for few weeks while your husband completes his trip. In case you stay behind and husband’s L-1 is denied, you again need to evaluate the situation.

  24. Anu

    Hi,
    I have just arrived in the US on a L1B. However, I am not happy with my current job and hence, I wish to look for a change. If I find a company willing to sponsor my H1B, can they file for COS at any time, or should they wait for April 1, 2013? Also, will H1B get approved only on Oct 1, 2013?

    Thanks
    Anu

    1. administrator
      Saurabh

      Anu,
      They will have to wait for April 1, 2013 to file H-1 w/ COS. Even if approved, it will go in effect only on Oct 1, 2013 or later.

  25. BMK

    Hi Saurabh,

    I am currently on H4 and planning to visit India on Dec last week, if I get H1B approved in next week. My question is

    1) When I will go for H1B stamping in India, I will not have any paystub as I am visiting Inidia before starting work. Will it cause any issue for stamping?

    2) What are other most imp docs I need to carry for successful stamping.

    Please answer asap.

    Thanks,
    BMK

  26. BMK

    Hi Saurabh,
    Thanks for guiding me in past and I am looking for your quick reply on this.

    I am on H4 and filed for H1B this year, RFE is replied last month and now expecting approval in couple of weeks. I have to travel India by end of this month for some urgent work and I will be back in Jan 2013. My questions are

    If H1B gets approved before I travel to India –
    1) Is it mandatory to go for H1B stamping? Can I go for H4 stamping (my husband has changed employer this year so we both will be going for stamping) and come back to USA on H4.
    2) Can I file for change of status from H4 to H1B again after coming back to USA and start work once it is approved? or do I need to wait till Oct 2013?

    If I travel to India when H1B is in process –
    1) What is the impact on the H1B process?
    2) As told by attorney, it will abandon COS, but what about H1B? Will it also be canceled?
    3) Can I file for COS H4 to H1B after returning from India on H4? or I need to file new H1B next year 2013?

    Please mention if I have missed any other possible scenario here.

    Please answer my queries asap, my travel plan is based on it.

    Thanks a lot in advance. Waiting for your response.

    Regards,
    BMK

    1. administrator
      Saurabh

      BMK,
      1. You can go for H-4 visa stamping and return on H-4
      2. Yes, you can file for COS after returning to US and don’t need to wait till Oct 2013.

      1. H-1 would continue to be processed but COS would be abandoned once you leave US
      2. H-1 would continue to be processed and may get approved w/o COS
      3. Yes, you can file for COS after returning to US and don’t need to wait till Oct 2013.

      1. Praniti

        Hi,
        I want to confirm the anwer to the question from BMK :
        Question: “If H1B gets approved before I travel to India –
        1) Is it mandatory to go for H1B stamping? Can I go for H4 stamping (my husband has changed employer this year so we both will be going for stamping) and come back to USA on H4.”
        Ans: “1. You can go for H-4 visa stamping and return on H-4”

        Would’nt it be necessary to get H1 stamped from India in this case?

        1. administrator
          Saurabh

          Praniti,
          There are 2 options:
          1. Return on stamped H-4 visa and then apply for COS for your approved H-1 petition
          2. Go for H-1 visa stamping but then you cannot return to US until Oct which is when H-1 becomes effective. No COS is required in this case

          So it depends upon when you plan to return and your comfort level w/ H-1 stamping.

  27. Raj

    Hi,

    Currenlty I am with Employer A in L1 Visa. Emp B applied H1B and got approved.

    When I given my papers, Employer A matched the offer and wanted me to stay back. But my L1 is coming for renewal in Apr-2013. I have few questions on this one:

    1) I am sure EMP B will cancel my H1B since I am not joining with them. In this case, can I apply fresh H1B in 2013 quota with current Employer A?

    Thanks

  28. Mitt

    Hi…

    One of my friends recently got an H1b stamped in his VISA.. The visa is valid till Feb 2013… he now wants to apply for F1 for fall 2013.. will there be a problem if he applies for F1 without utilizing his H1b …

    Thank you in advance..

  29. Rani

    Hi Saurabh,

    Urgent! Please help me.
    Currenly I am in L1B visa with Employer A and I have applied H1 thru Employer B. Last week I have got the status update saying my H1B got denied. My current L1B visa is expiring in April-28-2013.
    My questions:
    1) Emp B is saying they are willing to apply H1B in next years quota. Is it possbile to apply like that?
    2) Emp B is asking me to join in India If i am willing and asking me to go to Australia for 6 months. Meanwhile they want to apply H1B. Is it fine?
    3) If i am staying here, I have to renew my L1B visa next year April. If it is rejected, will there be a problem with next year H1B. What is your recommenation for my situation?
    4) If I am staying with Emp A, I want to go to India for vacation in next year Feb and come back in mid of March with 1 month validity(since mine is expiring in April end) with my L1B. Can I enter US with 1 month valid visa?

    Please help me.

    1. administrator
      Saurabh

      Rani,
      1. Yes, they can apply in next fiscal year. However, you should be careful. Unless the employer addresses the reasons for rejection, there is a good chance that the new petition will also get denied. The other thing you can do is find a better employer.
      2. This is legally allowed.
      3. Yes, L-1 extension needs to be filed if you want to continue to stay and work in US beyond April 2013. If L-1 is denied, then you will have to leave US ASAP (unless it is beyond Oct 1 2013 and H-1 has been approved w/ COS). If H-1 is still pending at the time of L-1 denial, then H-1 would continue to be processed, but COS would be denied.
      4. Yes, this is possible.

  30. Amit

    Hi,

    Currently I dont have any visa I am on I-94 ….which is valid till Jan 2015…….My employer has filed H1 in june and last month I received 2 page RFE requesting Employer employee relation establishment ..thru client letter SOW and my appointment letter ……We have everything except SOW because client never provide SOW for maintenance work…..

    I came to USA in jan 2012 on L1B visa and I got I-94 valid up to Jan 2015….My L1B expired on March 2012….I am working I94 dates…

    My question is what are the chancea I will get approval on my H1B….if it is denied am I able to continue here based on my current I-94 which is valid upto Jan 2015.

    Please help me …..

  31. Ramana

    Saurabh, I am thankful to you for your prompt response.

    But in I-797C it is written…

    Notice Type : Approval Notice
    Class: H1B
    Valid from : 10/01/2012 to 10/01/2015
    Consulate: Chennai.

    So, does it mean I-797C is APPROVAL NOTICE.

    It also mentions NOTICE DATE as September 17, 2012.

    Please guys respond if you know the info, as I have my visa interview in a couple of days.

  32. Ramana

    PLEASE SUGGEST IT IS URGENT

    I have received only I-797C from my employer. It is written on top of that – Form I-797C, Notice of Action. I did not get any I-797B. Can I attend my visa interview with this.

    Guys, please respond as my interview is scheduled.

    1. administrator
      Saurabh

      Ramana,
      797B or 797A is sent by USCIS to employer after the petition has been approved. It is then up to the employer to decide when and if to share it w/ you.

    2. administrator
      Saurabh

      Unless they have changed the process recently to send out 797C as final approval notice (which is very unlikely). You should check w/ others who got the approval this year to know if they received 797C or 797B.

      1. Ramana

        Saurabh, I am thankful to you for your prompt response.

        But in I-797C it is written…

        Notice Type : Approval Notice
        Class: H1B
        Valid from : 10/01/2012 to 10/01/2015
        Consulate: Chennai.

        So, does it mean I-797C is APPROVAL NOTICE.

        It also mentions NOTICE DATE as September 17, 2012.

        Please guys respond if you know the info, as I have my visa interview in a couple of days.

  33. Preeti

    Hi,

    I am on H4 and leaving for India in jan 2013 and coming back in 2nd week of april 2013,And I am planing to apply my H1b on 1st of april,2013,
    My questions are:
    1) My new H1b be need to file with my H4 I94?
    2) Can I enter back on H4 in 2nd week of april after filing my H1 b on 1st april?
    3) What if I will enter with h4 new I-94 and I alreday sumbited my H1b with old I-94?

    Please suggest……….

    Thanks,
    Preeti

    1. administrator
      Saurabh

      Preeti,
      1. You will be submitting the H-4 I-94 when leaving US in Jan 2013. So your H-1 will be applied as if you are not present in US and no I-94 would be submitted. This is just like filing H-1 while you are in India
      2. Yes
      3. Not a valid question based on (1)

      1. Preeti

        Hi Saurabh,

        Thanks a lot . .
        One more question: is there any bad or good impact to submit fresh h1b from India or submitting being USA ? Means submitting bad or good impact on decision when I will file my h1b without i94 or with I 94?

        Thanks in advance,
        Preeti

        1. administrator
          Saurabh

          Preeti,
          When you apply from India, you need to get H-1 visa stamped before starting to work on H-1. When you are present in US when applying H-1 and get your H-1 approved w/ COS, then you can start working on H-1 even w/o needing to get the visa stamped first. That’s the advantage of applying from within US.

          1. Preeti

            Thank you so much Saurabh…
            because of your prompt reply, I decided to change my travel date and coming back before h1 B filing i.e. end of march.

            Thanks once again…..
            Regards,
            Preeti

          2. administrator
            Saurabh

            Preeti,
            Cool! Make sure you reach back in time to file as soon as the new cap opens. I suspect next year to get over within a month or so.

          3. Jo

            Saurabh – Doesnt the 30-60-90 rule apply here? Since she comes to US in March and applies for a COS within 30 days ?

          4. administrator
            Saurabh

            Jo,
            Yes, that rule still applies but H-4 is a dual intent visa. So chances of USCIS questioning the intent are less than when filing from B-1/2 or F-1/2 which are pure non-immigrant visas.

  34. Shruthi

    Hi Saurabh ,
    How are you?
    Recently, I got my h1 b and unfortunately got laidoff last week(couple of weeks back). As i currently do not have any project in my hand I am planning to change my status to H4.My question is can i again go to H1-B Status from h4 with new employer or current emplopyer[ If I get the job]. Please advise.

    Thanks,
    Shruthi

    1. administrator
      Saurabh

      Shruthi,
      In future, you can again go back to H-1 status w/o going through the cap again. The current or new employer will have to file COS from H-4 to H-1 (in case of new employer it will also need H-1 petition/transfer). Make sure to keep a copy of current approval notice for future reference.

  35. Swati

    Hi Saurabh / All,

    I have this veryyyy urgent situation and need the clarification asap.

    I was on H4 and got filed for H1B through a valid employer this year. My petition got approved with COS(H4 TO H1) on June-12 with PP. I have joined my job from October 1st.
    My concern is, I visited india from Aug to Sept for 3 weeks and came in Sept. Before leaving my attorney told that as long as I am coming before Oct-1st, I need not require H1B stamping and so I came back on my old valid H4. (assuming my status will change automatically from Oct 1st to H1B)

    Now my I-94 (latest from H4) and my I-94 (attached to I-797 with numbers same as of last visit prior to H1B filing) are different. So, am I illegal here or should I have had my COS applied again after I came from India.

    I gave all my I-94 copies to attorney but he didn’t mentioned anything and told me to join the job. Please clarify, if one travels after approved COS and petition and returns before the H1B start date , is COS again to be applied?

    Best,
    Swati

    1. Renu

      Hi Swati,

      I guess it is not valid to enter US with H4 when you have an approved H1B petition.This was what i was told by attorney when i enquired the same question.Please make sure before you go ahead with job.

      1. Swati

        Hi Renu,

        Thanks for your comment but since I entered US before Sept 20th, how could have i possibly entered even with a stamped H1B? My attorney said that it is only when your actual COS applies, you should have H1B stamped.

        Still confused though 🙁

    2. administrator
      Saurabh

      Swati,
      Your attorney was correct. You left US after your COS was approved and returned prior to Oct 1. In this scenario, your H-1 I-94 will go into effect from Oct 1 allowing you to work. You can apply for your SSN, and its approval will further prove that you are on H-1 and not H-4.

      1. Swati

        Saurabh,

        You are AWESOME!!

        I have already got my SSN last week but I was more concerned about the differance of I-94 (the one with my I-797 and my last entry on Sept on H4).

        1) So the approach I have followed is legal and my attorney need not have to re apply for COS since I travelled after COS approved and came back much before October 1st.

        2) My last question is – The differance of two I-94 wont matter and the latest effective date I-94 will overrite the old I-94(H4) from my recent visit.

        Thanks again for being a life saver!!
        Best,
        Swati

        1. administrator
          Saurabh

          Swati,
          1. Correct
          2. Your effective I-94 is the one you received along w/ your H-1 petition. The other one is no longer active and is overwritten by the one issued w/ H-1.

      2. Abc

        If someone leaves US before COS approval means it only abandons the CoS not the whole application rite? My case was similar coz i left for india before the decision on my New h1b could come and returned bk (before Oct 15 as that was my start date of new H1b) on my old L1 visa at POE (New i-94 L1b). Hence after i returned bk then got the approval of H1b with the new I-94 (H1B-COS I-94) isnt matching with the old one (L1B I-94 issued at POE)which was given prior to H1b filing. The which is my status?

        1. Swati

          Abc,

          To the best of my knowledge, if you travel during your petiton process and before it is approved with COS, the COS gets abandoned but the petition holds good.

          You should be on your L1B currently, however you can switch to your H1B by asking your attorney to apply a COS again from L1B to H1B.

          Had you not travelled to India your status would have changed automatically to H1B.

          Swati

        2. administrator
          Saurabh

          Abc,
          It seems to be an error that your COS got approved even after you left US prior to its approval. I would suggest talking to your H-1 attorney and get in touch w/ USCIS to know what happened.

          1. Rehaan

            Hi ABC,

            I am in same boat. Although yet to get approval. I travelled to India when my petition was in process.

            What did ur attorney/USCIS say. Please guide.

            Regards,
            Rehaan

  36. Ram

    Currently 15Oct2012 still working with my Employer on L1 visa with I-94 # XYZ received while re- entering US in Sep2012 valid till Jan2013. In mean time I applied for H1B from another company when in US and also received Approval Petition and change of status approved starting 03Oct2012 having I-94# ABC – this I-94# was old I-94 that I had when filling the application.

    Now, I would like to know whats my current status – Is it in L1 or it H1?? Does I-94# really maters.
    Do I need to apply for Change of Status if need to work H1.
    & if I need continue working in L1 what should i do get to the correct L1 status.

    Appreciate your response. Thank You

    1. administrator
      Saurabh

      Ram,
      I assume you left US after your H-1 petition was approved. In this case, your current visa status is H-1 and not L-1. There is something called “Last Action Rule” which states that most recent I-94 governs your status. However, one needs to look at the date I-94 goes into effect and not the date it was approved. Your H-1 I-94 went into effect on Oct 3, while L-1 I-94 went into effect in Sep. This implies H-1 is the last status and you are on that status. You can check w/ your attorney as well.

  37. Arghya

    Hi Saurabh,

    How r u?I have question with respect to H4. My wife is now in US with H4. She is a freshers in IT and we will be planning for H1B. Could you please suggest the best way to find some consualtant who can guide us?

    Thanks,

    1. administrator
      Saurabh

      Arghya,
      You can look for them either through your network of friends and colleagues, or through job sites like dice, monster etc. As she is a fresher, she may have tough time finding good employers and projects. So she should work on her skills. Also, do a thorough background check of whatever employer you decide upon.

  38. Priyanka

    Hi,
    I came here on h4 and after cming here i had applied for f1.. in the mean time my husband also files change of h1b transfer . so he filed for me too ..
    Now my f1 is approved..
    and my problem is that i got that sanction of f1 very late from uscis.. so from my college they said that they had registered me in h4…
    but now i got approved copy of f1…
    so now what is my status???//

    1. administrator
      Saurabh

      Priyanka,
      You are now on F-1 status. You should talk to your DSO about this. They will update their records accordingly.

  39. pooja

    Hi Rao,

    I am also on L2 EAD and looking for H1B sponsorship. Can you please help with that how you got it done.. how much money is required and the processing time

    Thanks
    Pooja

    1. administrator
      Saurabh

      Pooja,
      Be aware that H-1 fees need to the paid by the employer. The petition can be filed on or after April 1, 2013 w/ employment start date of Oct 1, 2013.

  40. Vans

    Hi Sourabh

    I had applied for h1b visa for a Pharmacy intern position. I got my h1b visa approved on 09/17/2012(it is h4 to h1b). I have applied for ssn on 09/26/2012. Now it will take around 2 weeks or more to get ssn. In my case I will not get a pharmacy intern lisence unless I submit my ssn to CA board of pharmacy. My questions are:
    1. If it takes around a month or so to get a ssn and intern lisence, I will not be able to start working from 10/01/2012, will this affect my h1b status?
    2. Is there any particular time frame within which one should start working on h1b visa from Oct 1 of the fiscal year?
    3 when my employer should file I-9 form?

    I will appreciate your help.

    Thanks,
    Vans

    1. administrator
      Saurabh

      Vans,
      1. Yes it can be an issue. Your employer should still pay you and may be collect additional taxes later (once you have the SSN). You can also talk to your attorney if this delay can be reasoned w/ USCIS as you are still waiting for SSN and license.
      2. You need to start getting paid from the day COS becomes effective.
      3. They should ask you to complete it as soon as you move to H-1 status.

  41. Amit

    Hi,

    My Change of status from L1- H1b visa has been filed on June 1 2012 with USCIS ….but still I am waiting for approval…

    Do you know how much time it takes to approve the change of status case ?

    Thanks,
    Amit

  42. Suma

    Hi Saurabh,

    I got my H1B approved with COS from F1/OPT and it begins from Oct. 1st 2012.

    If I get another job offer, when would be the best time to apply for H1 Transfer with other company. Many are saying it is not safe/good to transfer very early when the H1 begins.

    Is that true? or can I file for a H1 transfer anytime after Oct. 1st. Please advise

    Thanks

  43. PP

    Hi Saurabh….
    My mothers visitor visa was refused twice this year in April. I am going to the chennai consulate for my H1B stamping. I am currently employed in US and on OPT with F1 visa. Will the fact that my mothers visa was refused twice affect my case?

  44. chandra

    Hi Sourabh,

    Recently I have changed my employment from one university to another university. I have a H1B visa from the previous university and I have got it stamped. The new university has applied for a H1B and I am working here since one month. My question is , Do I need to get the new H1B visa when i visit India the next time. Also I have not informed my previous university ( International Student Office) when I was leaving, will that be a problem?

    thanks,
    Chandra

  45. rao

    Hi Sourabh,

    I’m on L2 EAD and my H1B approved on Aug 15th 2012. I traveled Out of country for 4 weeks and returned on Aug 23rd 2012. In my opinion, I must travel to another country to get H1B stamped before my L2 EAD expires (Mar 2013), Please comment on this.

    Also, If I have to travel another country – is Canada or Mexico better option ? which one do u suggest ? Please comment.

    As always — Thanks in Advance,
    Rao

    1. administrator
      Saurabh

      Rao,
      Did you travel for 4 weeks prior to H-1 approval or afterwards? If you travel prior to H-1 approval then H-1 would have been approved w/o COS. In this case you need to get H-1 visa stamped from your home country and then enter US on H-1 visa. You should go to home country as you didn’t do Masters in US and this is your first stamping.

      1. pooja

        Hi Saurabh,

        I am on L2 Ead and planning to file h1B.
        As you said, if you hvnt done Masters in US do we need to get the stamping done from home coutry..? Is it mandatory?

        1. administrator
          Saurabh

          Pooja,
          For first time H-1 stamping it is strongly suggested to go to home country if the person has not done Masters. It is not a rule, but a recommendation. You can still go to CA or MX, but there is a good possibility that you will be sent back w/o interview.

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