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H-1B petition approvals come in two types - Consular Processing or Change of Status. Both these types do not affect the chances of getting an approval but can be used strategically to suit the needs of the employee and the employer.
What is Change of Status?
This option allows foreign nationals already in the U.S. on a valid visa to change or transfer their immigration status to the new H-1B.
What is Consular Processing?
This option means that to activate the H-1B visa, the foreign national will have to get it stamped on their passport at a U.S. embassy, outside the U.S.
Scenarios: when to use Change of Status?
Generally, Change of Status should be used for foreign nationals who are already present in the U.S. on a valid visa. Let's look at some scenarios -
New H-1B for employee who is on F-1 (CPT/OPT)
New H-1B for a candidate who is currently on H-4 or E-2 visa
Transfer H-1B for a candidate who is currently on a H-1B with another employer
H-1B renewal/extension for an employee already in the U.S.
Scenarios: when to use Consular Processing?
Individuals who are outside the U.S. at the time of filing or are planning to travel while the H-1B petition is pending should opt for Consular Processing. Here are some scenarios -
New H-1B for a candidate who currently lives outside the U.S.
Transfer H-1B for a candidate who is currently waiting on a H-1B extension decision with the previous employer and has received an RFE
H-1B renewal/extension for an employee who is planning to travel while the H-1B petition is under review
Is the employer required to pay the employee for travel and visa appointment, if consular processing is selected?
No, the employer is not required to pay travel or appointment expenses.
Does the foreign national need to immediately leave the U.S. if the case is approved with Consular Processing?
Scenario 1: Employee is on F-1 (OPT/CPT), H-4/L-2 (EAD) - The foreign national in this case can work on their current status until the status expires and can travel outside the U.S. to get the H-1B stamped.
Scenario 2: Candidate is with another employer on H-1B - In case of transfer H-1B, the candidate can start with the new employer only when they get the new visa stamped on their passport.
Scenario 3: Candidate is on a non-work visa - In this case, the candidate will have to travel and get the visa stamped before they can begin work with the new employer.
Can I opt for both the options at the same time?
No, you have to choose between Adjustment of Status and Consular Processing when filing the petition.
Can I change my selection from Adjustment of Status to Consular Processing after filing H-1B petition?
Yes, you can do so by filing Form I-824 with the appropriate USCIS service center and wait until you receive the approval notice (which may take multiple months).
Can I change my selection from Consular Processing to Adjustment of Status after filing H-1B petition?
Yes, you can do so by filling out the Form I-485 (Adjustment of Status form). Upon approval the petition will be transferred to the appropriate Service Center adjudicating the petition. Note - this may add several months to the processing time.
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The information contained here is meant to be informational, and while WayLit has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.