H1B Visa Change of Status vs Consular Processing Difference Info

H1B Visa Change of Status(COS) vs Consular Processing Difference?

In H1B Visa by KumarUpdated : 8 Comments

If you plan to work in US, H1B visa is one of the most popular visa types that is used by many international professionals. Depending on where you are at the time of filing, and your preference, your employer/ H1B sponsor would choose to file the H1B petition either as Change of Status (COS) petition or Consular Processing petition. This step of filing the petition comes after the H1B Registration Process. If you filing in H1B Visa 2021 season and new to the H1B Visa Application process, you may wonder what these terms are, what are the advantages and disadvantages of each process, risks involved and what is the common way of filing. We will cover all these topics and address some commonly asked questions at the end.

Before we jump in to details, first we need to understand general meaning of change of Status(COS) and Consular processing from USCIS standpoint.

What is Change of Status (COS) ? Meaning ?

Change of status, commonly referred as COS, means someone applying with USCIS to change their current visa status to another visa status, without leaving the country. If you do not know what is the meaning of status, read US Visa vs. Status, I-94 info.

For example, let’s say you enter US on F1 student visa to study, then after your graduation, you want to work in US, but do not want to leave the country and transition from student visa to work visa. In that context, you can apply for Change of Status (COS) with USCIS, when you apply for work visa (H1B). Not all visa types are eligible for COS. Certain visa categories like crew member (D Visa), transit visa (C Visa), Visa waiver program, etc.  are not eligible to apply for COS.  For more info, you can read article Chang of Status(COS) – F1, H1B, L1, FAQs

What is Consular Processing ? Meaning ?

Consular processing is the process, where an applicant need to go to a US Consulate to get US Visa Stamp in their passport. The applicant would use that visa stamp to enter US and get that particular US visa status after entry into US.   Depending on the US Visa they are applying to, they may need an approval notice from USCIS.   Unlike in COS, for Consular processing, you need to follow certain steps such as filling out DS-160, setup an appointment to attend visa interview at US consulate, and get US Visa stamp on passport.

 For example, let’s say someone want to work in US and they are living in their home country. In this context, first they get H1B approval notice from USCIS and then they will apply for H1B Visa stamping with US Consulate. This is a typical Consular processing case. Also, Green Card applications can be processed in Consular processing.

Now that we know the general difference, let’s look at them in context of H1B Visa.

What is H1B Visa Consular Processing ?  Meaning ?

When someone says, they are applying H1B Visa for an applicant using Consular processing, they are saying that, for the H1B visa applicant to work in US on H1B Visa, they need to visit a US Consulate and get H1B Visa stamp in their passport to enter US on H1B visa. This is the most common situation for anyone filing for H1B Visa, when the H1B applicant is not living in the US. All of the applicants living outside of US are by default considered as applying H1B using consular processing.  When you get H1B approval notice, there will not be any I-94 Document attached to it.

What is H1B Visa Change of Status (COS )? Meaning ?

When someone says, they are applying for H1B Visa using Change of Status (COS), they mean to say that the H1B applicant is living in the US and applying to change their current visa status to H1B visa status without leaving the country(USA).  If H1B is approved with COS, the approval notice of H1B would have I-94 attached to the approval notice. It will state the Class of Visa as H1B and the start and end date of that status. See below screenshot. Also, check out Sample H1B Approval Notices with COS

I-94 Sample given by USCIS in H1B Approval Notice

H1B Change of Status (COS) Application and Travel Restriction ?

One of the important things you need to be aware, when you file H1B application as Change of Status, is that you have travel restrictions.  If you travel out of US, when your H1B COS application is pending with USCIS, they will abandon your Change of Status part of the application. So, it is not recommended to travel, if you file your H1B as Change of Status until you get your H1B approval decision.  

Let’s look at how it works and why USCIS will abandon your COS application.   

  Technically, when you file H1B application as COS, what happens is that, you would submit your electronic I-94, that indicates your visa status at the time of filing. After the adjudication is made and your H1B petition is approved, USCIS will use the same I-94 number and update the Visa Class on it to H1B and attach the I-94 record to the approval notice.  So, if you leave US, while the H1B is pending, USCIS assumes that you are abandoning your Change of Status because they assume that you would return in the same visa status at the time of filing. Also, the I-94 number also changes… so they consider it as abandoned.  Hence, you need to be very clear that you cannot travel after your COS application is filed, until the H1B is adjudicated.

Each of the above have their own disadvantages and advantages. So, you need to understand the pros and cons for you to decide what suits your situation.

Advantages and Disadvantages of H1B Consular Processing

Advantages of H1B Consular Processing Disadvantages of H1B Consular Processing
New H1B : f you are living in US and applying for new H1B as Consular processing, there is no need for you to prove that you have maintained status in US.  You do not have the burden to submit extensive documentation to prove that you maintained proper status all along your stay in US.  This may be critical, if you believe that for some reason, you have not maintained status or violated status. Typically F1 students not working as per requirement, or having more than required unemployment days…Also, if you are in one of those Day 1 CPT colleges and you are sure that USCIS will not approve COS.      Also, if you are in any other status and for some reason you ended up in a situation, where you got denial or violated status, then consular processing will be the better one as there is no need to prove proper status.  

Activate H1B : You have the choice to decide, when to start working on H1B. You can plan for Visa interview and everything as per your wish. No rush to automatically move to H1B status.  

Travel : You do not have any restrictions for Travel, you are free to travel anytime during the period, when your H1B is pending with USCIS.  

H1B Transfer, I-94 Expiry : If you are applying for H1B transfer after I-94 expiry, when in bridge situations with H1B RFE and denial, in that situations applying for H1B in Consular processing is helpful as you do not have to prove your status.  It is the recommended approach too.      
New H1B : If you are living in US and apply your H1B as consular processing, then you need to leave the country (US) and get visa stamping done in your home country or in countries like Canada or Mexico.  US visa stamping has its own risks as you need  to go through the Visa interview. USCIS can issue 221g  for Administrative Processing and it can take a long time to clear the same.   Visa stamping is must and it is an extra hurdle for you as you need to go through additional scrutiny and processing. In recent times, there are many administrative processing cases, that end up in denials. As per our 221g Tracker, at least 30% of cases (can be much more)  are denied during Visa Interview.    

Also, you cannot work right away as you need to get visa stamping appointment and there can be delays finding dates for visa stamping.  If you have restrictions that you need to continue to work without any gaps, then it can be a challenge to navigate all the dates and sort out everything.      

Outside of US : If you applying for H1B from outside of US, it does not matter, there is not much advantage or disadvantage for you. You have only one option, which is consular processing…  
Advantages of H1B Change of Status (COS) Disadvantages of H1B Change of Status (COS)
If you are in US and apply for Change of Status(COS), you can start to work right away from October 1st or whenever the petition is approved after October 1st. There is no need to go for visa stamping.   You do not have the risk of facing a visa interview from Consular officer and potential risk of getting a 221g for administrative processing.       One of the biggest disadvantages of Change of Status is the travel restriction, when the H1B is pending with USCIS.  If USCIS does not have premium processing in the first few months after H1B season starts or your employer is not keen on applying for premium processing, you can be stuck waiting for approval for months and also you cannot travel during that time, so it can be pretty challenging, if you have emergency travel need.  

Also, you have the burden to prove that you maintained status all along your stay in US. It can be tricky at times with F1 OPT, unemployment days, Evaluation forms, etc, including if you studied in Day 1 CPT colleges….

Should I apply H1B as Consular Processing or COS ?

This totally depends on your situation and circumstances. Below are some common rule of thumb suggestions.

Filing H1B as Consular Processing : Below are some of the common situations to file as Consular processing.

  • Not maintained proper status in US on F1, OPT, STEM OPT, Day 1 CPT
  • Applied for H1B transfer after I-94 expiration during bridge situations
  • Applying for New H1B in Registration / Lottery Process from outside US
  • Need to travel out of the country, when H1B is pending with USCIS.

Filing H1B as Change of Status(COS) : Below are some of the common situations to file as COS.

  • Maintained proper status on F1, OPT, STEM OPT.
  • Maintained proper status in previous visa like H4, L1, etc.
  • Applying for H1B before the I-94 is expiring and maintained proper status.
  • No travel need until the application is approved by USCIS.

What are your thoughts on filing H1B ? Which is better COS or Consular processing ?

Share your experiences, questions, thoughts in comments.  

   

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Comments ( 8 )

  1. rohan

    Hi,

    I am in Day one CPT and I am planning to apply through consular processing .
    I want to know about the chances of approval of H1 B through this process. Will the chances of approval vary based on how you will apply to the USCIS for H1 B ?

    1. administrator
      Kumar

      rohan,
      It is probably the better option to go in Consular process as many with Day 1 CPT get COS denied…. I would suggest you get out of the Day 1 CPT program as soon as you can as it is a very risky move and you may be asked additional questions during Visa interview too…so, be careful and prepared ! Most of the Day 1 CPT schools are providing it by bending rules…so stay away…

  2. Qestion

    Hi Kumar – I was unemployed on opt for a total of 91 days which means i failed to maintain my status by a day. I am planning to apply for counselor processing. I wanted to know if i apply for counselor processing which means USCIS won’t ask me to show the documents for maintaining the F1 status but what all check points will my application go through in counselor processing other than status check ?

    1. Ray

      Kumar,

      I have applied for H1B three times and I got selected this year. I have taken Day 1 CPT (Ph.D.) last August and by August 2020, it will be 1 year. Is it advisable for me to cancel the CPT before August 2020 and go to India to get the visa stamp and back on H1? That way I am not violating the CPT rules, right?

      1. administrator
        Kumar

        Ray,
        Day 1 CPTs are really subject to lot of scrutiny, so I would move away from that… Yes, stop Day 1 CPT, talk to an attorney and plan out well, so that you can answer any queries that you can expect in Consulate.

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