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 : 35 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 ( 35 )

  1. Claire

    I am in F1 visa right now, and will be using OPT visa for a year (EAD card already delivered). Luckily I got the h1b lottery this year and will be filing my petition in June. Due to whole pandemic situation, I took a flight back to my home country and was wondering which route would be my best option. Do you think going for COS would be safer for me? It would mean that I should fly back to the US just for the sake of visa. Would there be any difference in the amount of filing/preparing documents for Consular Process? Thank you so much for your help!

    1. administrator
      Kumar

      Claire,
      Well, it is not about safe or not, it is about your convenience. As the article says, it has both pros and cons, your decision.
      There is no difference in preparing document, it is all the same. Yes, you need to be in US, if you want to file it as COS.

      1. AJ

        Hello Kumar, I am in the se boat. I just received my EAD card for initial OPT valid till June 2021. Luckily, i got selected in the H1b lottery and have asked my attorney to file it as consular processing. My question is that if i continue working on OPT with an approved h1b CP Petition and not get it stamped, Will it deduct time from the 3 years alloted. Technically, i will not be on the H1b status unless i get it stamped? Will that still start the 3 year clock for my h1 despite me not using it?

        1. Belinda

          Based on what I read, one of the benefits of consular processing is that you can control the activation of H1B . So you can keep working until the last day of your status or until you get the stamp fro the consulate, whichever is earlier.

          1. AJ

            Hi Melinda, thank you for the comment. My question, however, is whether you’re entitled to 3 years of H1b status even though you get it activated a year/two after the petition is approved. I.e working on OPT EAD despite having an approval notice

  2. David

    Hello,

    I have my H1B petition (the year 2019) approved with Consulate Processing and I plan to go to Canada US Consulate (Though I’m not a citizen of Canada) for visa stamped. But you know for the pandemic, I’m not sure I can do that in time before my current F1/I-20 (STEM OPT) expires.

    My question, can my employer and attorney submit a change petition to change current Consulate processing to COS?

    Thank you and Wish goodness be upon you during such a difficult time.
    David

    1. administrator
      Kumar

      David,
      The general practice is to get out and get stamping done. I have not seen many situations like this, it maybe possible, if you file an amendment with COS. Check with your attorney.

      1. Seema

        Hi Kumar,

        I am in the exact same situation . My company has applied for COS, but by the time COS happens , my opt EAD will be expired . So is it possible for me to continue working with receipt notice until COS has been approved ?

        Please advice .

          1. Seema

            Are you sure that I can get H1B cap gap till sep 30th even if my case got approved in 2019 under consular Processing? Please advice

          2. administrator
            Kumar

            Seema,
            I thought you applied for FY 2020 and it was COS.
            If it is FY 2019 and in consular processing, then you do not get the cap gap.

          3. Seema

            Ok thanks for the information Kumar. So what are my options? My OPT ends in 1st week of June and with no premium processing at the moment, I believe the COS will take some time for sure. Will I be able to continue working with the COS receipt notice? We don’t have a date of reopening for the consulates as well. Please advise. Thanks

          4. administrator
            Kumar

            Seema,
            No, you cannot work as I said as you will not have H1B status and no cap gap as it is for FY 2019. Talk to an attorney and discuss your options.

      2. Belinda

        Hi,
        I am in a similar situation.
        My previous employment ended December 31st 2019,
        I got an offer letter January 9th 2020 for my new job with a none verified employer (Both jobs are in academia..so cap exempt)
        They applied for my H1B via consular processing and I received the approval notice on March 16th
        Before I could make travel plans or reserve appointments, travel ban was issued.
        My status expired April 30th and I applied for change of status i539 and i am awaiting a response
        Can I travel to Canada at this time to stamp my H1B?

        1. administrator
          Kumar

          Belinda,
          Well, you may….Usually, they recommend to go to home country if you are going for COS stamping…If they allow in Canada, you may. Discuss with your attorney

  3. Anonymous

    My H1B extension was filed on December 31st 2019 (previous i-94 was Jan 10th 2020) and I got RFE on January 6th 2020 and my company responded back to RFE on April 3rd 2020. Yesterday I got approval notice with my new I-94 end date as February 1st 2020.

    My H1b is currently out of status.

    My wife’s company has started my h4 process on April 8th 2020 as a backup and I have received receipt notice for start date April 13th 2020.

    Note:
    I got my first H1B on October 2016 and I have used it till today . So I still have around 3 years remaining.

    If I get another job from New Employer say next month . What is the process ?
    My understanding is my new Employer will submit for a new h1b petition and since I have cap-exempt, can I immediately start working for the new employer as soon as I get my new h1b receipt from the new employer or do I have to go to India and get stamping and come back.
    I need some expert advice here.

    1. administrator
      Kumar

      Anonymous,
      You can apply for H1B Transfer and capture your remaining time of h1B. You are cap exempt. You cannot start working immediately, if your COS to H4 is approved, you need to wait for approval. Talk to attorney and plan it out.

      1. Anonymous

        Thanks a lot Kumar for your response.
        So Any employer who is willing to submit a new H1B petition can do it only after my H4 Approval ? Not while my H4 is in progress?
        Am I understanding this correct.

        1. administrator
          Kumar

          Anonymous,
          They may do it during H4 processing as well, that’s where the timing issues come in and need planning. Discuss with your attorney.

  4. Krishna

    Hi,

    I filed H1B extension on July 2019 and still waiting for USCIS response, my max-out period of 240 days is ending on 6th May 2020, is there any way to maintain the status without travelling back to home country? as travel ban in place. Please advise.

  5. Rajesh

    Hi Kumar,

    I have got an admission from a Good school in PhD program which starts Summer 2020 from May 4th. I am currently on STEM OPT which is scheduled to end on May 31st. My H-1 application got selected this year. I am interested to pursue PhD and also continue working as my work is Remote. What is the best thing you would do in this case?

    1. administrator
      Kumar

      Rajesh,
      Well, this is tricky…On F1, You cannot work until you get CPT authorization. Most of the good schools do not have that option from day 1. The Day 1 CPT schools are fraud.
      Now, you could consider working full time on H1B and then pursue PhD on H1B. You need to work out your schedule with your professor and plan it out. Also, working on H1B, you need to take care of LCA and stuff. Discuss with your attorney on this and plan it out.

      1. Rajesh

        Day 1 CPT while doing a Ph.D. is Legal. It is a State University and following all the rules from USCIS. I agree that continuing a Ph.D. while on H-1 is an Option but being on H-1, We also need to make sure about having a Job. The current situation of the economy makes us have no control over jobs.

        However, One question about Consular Processing. If my H-1 was approved until Dec 31st, 2021. I have not gone for any VISA interview to activate H-1 until then. What next?

        1. administrator
          Kumar

          Rajesh,
          If you dont mind can you share the University Name ? Most of the Day 1 CPT schools are subject to fraud, so be careful…
          Well, then they need to apply for extension post that date.

  6. 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…

  7. 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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