Change of Status FAQ for H-1B


Q: I have filed for a status change from F1 to H1. Can I travel outside US and come back?
A: If you have filed for any status change while you are in the U.S., it is NOT advisable to go outside the U.S. until your application with USCIS is processed. If you travel outside, you will have to wait there until the final decision of your application is made by USCIS and will have to get your visa stamped for the new status.

Q: If my I-485 was denied while I was working on EAD, can I still apply for an H-4 since my wife still has a valid H-1?
A: That depends on the reasons for the denial. If your 485 was denied for reasons that do not render you inadmissible to the United States, e.g. your company went out of business, withdrew your petition, you changed jobs, etc. then you may apply for an H-4 visa. If on the other hand, your application was denied because you are subject to one or more grounds of inadmissibility (e.g. you committed fraud, robbed a bank, etc.) you are not eligible for admission to the United States under any status.

Q: I currently have a multiple entry visitors visa. Can I travel to the USA and apply for an H1B visa over there?
A: If you can find an employer who is willing to sponsor your H1B visa and if you qualify for an H1B visa, you can get an H1B visa. However, the H1B visa has an annual quota and it opens only on Oct 1 of the given year and the applications are accepted starting Apr 1 of the given year. If you are not able to stay in the U.S. till Oct 1 on a visitors visa, you need to return to the home country, get the H1B stamped and go back to the U.S. to work on the H1B visa.

Q: I am currently on an X (L1) status and have applied for a change of status (COS) to H-1B this year. Can I continue on an X (L1) status after the H-1B approval?
A: Status changes are handled by USCIS. You cannot choose which status you want to be maintaining. If the H-1B was applied as a change of status (COS) and it is approved, you are not in X status any more. If X is L1, you cannot and should not work on L1 beyond the H-1B start date. There is no grace period. If you work after the COS effective date on your previous status, it is unauthorized employment and will cause problems later on.

Refer to the leap frog question/answer on this FAQ on how to get back into your previous status by travel or filing another COS.

Q: I have my H1b COS (change of status) approved from October 1st. Somebody told me I am not on an H1b unless I apply for a SSN (Social Security Number). Is that true?
A: No. Applying for a SSN has nothing to do with you being on H1b status. If your COS was approved with an attached I-94 to I797, you are on H1b immediately after the start date. Your employer has to pay you your full salary even if the SSN is pending.

Q: I currently have an L-1 visa stamp and I am applying for an H1b. Is there any risk in applying for H1b and L1 at the same time?
A: No, it is legal to apply for different petitions and it will not jeopardize other applications.

Q: I am currently on an F1/H4 status and have applied for a H1 COS from October. If I travel outside the US in September and comeback before Oct 1st, will I be on an F1/H4 ? Do I need to travel in September and return only after OCTOBER 1 to maintain my previous status and not be on H1b?
A: This is called 'Leapfrog principle' and was clarified in Efren Hernandez Memo regarding COS (Change of Status).

If you have a COS petition approved before your travel date with an attached I-94, your status changes automatically on October 1st if you remain in the U.S.

If you have a change of status approved with a future start date, have traveled outside the U.S. and are returning on a different visa , it would still change your status as of the effective start date in the future.

E.g., F1/L1 holder that has an approved H1b with Change of status effective Oct 1st, returns to the U.S. on Sep 20th on F1/L1, the person will be on H1 status from October 1st. This is guidance from Efren Hernandez's memo.

If you don't want the COS, you need to return after the COS effective date to the U.S.

Q: When I was last in the U.S., I changed my status from one classification [e.g. Student (F1) or Temporary Worker (H1B)] to another. Do I need a new non-immigrant visa?
A: Yes. If you have changed your status, you must also present evidence that you did so lawfully by providing USCIS Form I-797 (Notice of Action) for Change/Adjustment of Status to the Consular Officer at the time of your visa interview.