A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Sunday, February 16, 2014

Change of Status to H-1B

As the H-1B filing season approaches, many foreign nationals have questions about the H-1B visa program such as the application deadline, the job requirements, the prevailing wage, etc. For those applicants who are already present in the United States, they must also understand how to legally change their immigration status to H-1B.

H-1B Visa vs. H-1B Status
In casual conversation, people sometimes talk about their "visa" and "status" as if they were the same thing. In fact, they are completely different concepts in U.S. immigration law.  A foreigner needs a visa to enter the United States; it is like an admission ticket.  His status in the United States, however, is determined at the time he is admitted to the U.S.  An immigration officer at the port of entry determines both the status and duration of admission.  After admission, a foreign national may change status to another non-immigrant status, such as from F-1 to H-1B status. The person does not need another visa unless and until he departs the U.S. and attempts to reenter.

Change of Status to H-1B
Typically, an H-1B applicant is a foreign national who is present in the United States in a non-immigrant status (e.g., F-1).  In order for him to work in H-1B status, the petitioning employer must request for H-1B classification on his behalf.  Further, the Form I-129 petition must also request for a change of status to H-1B.  It is possible that USCIS approves one's H-1B petition but denies the request for change of status.  In such a situation, the applicant would have to depart the U.S. and apply for an H-1B visa to reenter.

Common Reasons for Denying Status Change to H-1B
The most common reason for denying a request to change status to H-1B is failure to maintain one's lawful non-immigrant status.  For example, a F-1 student could have engaged in unauthorized employment or otherwise violated his F-1 status on SEVIS.  Some students engage in Curriculum Practical Training (CPT) employment, but if it is not an integral part of the academic program, then it can be viewed as a violation of status.

Another common reason for denial is departure from the U.S. while one's application to change status is pending.  A request to change status to H-1B is based on the premise that the applicant is present in the U.S. in another status.  Departure destroys one's eligibility.

Most non-immigrant classifications, such as H-4, F-1, L-1, O-1, B-1, B-2, etc., allow the holder to change status to H-1B.  There are some exceptions. For example, if an applicant is a J visa holder who is subject to the 2-year residence requirement, she is not allowed to change status to H-1B unless a waiver is granted.

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