H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years.
We often get asked by the Petitioner (the US Company sponsoring the foreign worker) and by the Beneficiary (the foreign worker) the following questions: Should the petition be filed as a Change of Status or Consular Processing? Which option is better?
The answer will often depend on the specific circumstances of your case.
Change of Status
Filing the H-B petition as a Change of status will only be possible if the Beneficiary is in the U.S. at the time the H-1b petition is being filed and he/she has a valid immigration status in the U.S.
One important thing to keep in mind is that the earliest day you can change your status to H-1b is on October 1 (in the year when the H-1b petition was filed). Therefore, the Beneficiary will have to have a valid status in the U.S. until at least September 30 to be able to change your status in the U.S. to H-1B.
You are currently in the U.S. on an F-1 OPT status and you found a U.S. company that wants to file an H-1B petition for you. Your OPT expires in July 2021, and you are wondering if it would even be possible to change status to H-1B in this case, given that your OPT expires in July.
The short answer is it depends. If your case is selected in the H-1b lottery system and the US company timely files your H-1b petition, then you will be eligible for a cap gap, meaning that you can stay in the U.S. on your OPT status even after your OPT status expires, and you can automatically change status into H-1b on October 1. Please note that your status will only be extended until September 30 through the cap gap.
Consular Processing option means that your US employer will still have to file the I-129 petition with USCIS, but you will have to go to a U.S. Consulate abroad and apply for an H-1b visa stamp. Only after you have an H-1b visa stamp in your passport will you be able to come to the U.S. and start working for the H-1B employer on H-1B status.
The Consular Processing option can be used in several different scenarios. For example, if the H-1B applicant is outside the U.S. at the time the H-1B petition is being filed, the company has no other choice than to file the case as Consular Processing.
But there are other scenario when filing the case as Consular Processing may be a good option, for example:
You are currently in the U.S. on STEM OPT status and your employer wants to sponsor you for an H-1B. Your H-1B registration is selected in the lottery (let’s assume in April 2021) and your STEM OPT expires in June 2022. Because you can only stay in the U.S. on H-1B status for a maximum period of 6 years, in this case, it may be a good idea to file the H-1B petition as Consular Processing. This way, you can stay in the U.S. on your STEM OPT until June 2022, and you can then go to a Consulate, apply for an H-1B visa, and only start working on your H-1B status once your STEM OPT status expires. This way, you will fully utilize the STEM OPT work authorization and the 6 years you can work in the U.S. on an H-1B status.
As explained above, the Consular Processing option means, that your status does not automatically change to H-1b on October 1, but you will have to leave the U.S. and apply for an H-1B visa stamp at a U.S. Consulate abroad. Only after you enter the U.S. on your H-1B visa, will you be in H-1B status.
Please note that at the time of writing this blog post, the presidential proclamation that restricted issuance of H-1B visas was still in effect until March 31, 2021. This means that except certain exceptions, the Consulates worldwide are currently not issuing H-1B visas. Please see our blog post on National Interest Exceptions for H-1B workers when you click here.
Additionally, due to Covid-19, many Consulates may still be backlogged in summer/fall 2021, so in 2021, it may take longer than usual to get an H-1B appointment at a U.S. Consulate abroad, and if an H-1B applicant is already in the U.S. on a valid status, it may be advisable to file the case as a Change of Status rather than Consular Processing. You should contact an experienced immigration attorney to advise you what would be the best strategy for your case.
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