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Change of Status to H-1B

What is Change of Status?

    A nonimmigrant temporarily enters the United States for a specific purpose such as business, study, temporary employment or pleasure. When you are admitted into the United States, a U.S. official would (will) assign a nonimmigrant category (Examples B1, Business Visitor or B2, Tourist Visitor, or etc.) according to the purpose of your visit. If you want to change the purpose of your visit while you are in the United States, then you or, in some cases, your employer must ask the USCIS to change your nonimmigrant status. You may apply for change of your nonimmigrant status, if your nonimmigrant status remains valid and you have not committed any crimes that would make you ineligible. For instance, if you arrived here as a tourist, but want to become a student, you must submit an application to change your status with the USCIS and receive approval before your commence your studies.

My employer is submitting H-1B1 Petition on behalf of me. Do my dependents require submitting separate application in order to change their status?

    Yes. Please note that Change of Status of dependents is not automatic. If your employer files Form I-129 (Petition for Alien Worker) on behalf of you and changing your status to H-1B1 or some other nonimmigrant category, then your spouse and child must submit Form I-539 (Application to Extend/Change Nonimmigrant Status) along with required supporting documents to change to a new nonimmigrant category. It is best to submit your application along with your employer’s petition. Your spouse or children were given derivative nonimmigrant status. Derivative nonimmigrant status means that your spouse and children were given nonimmigrant visas based on your nonimmigrant status. For instance, if a foreign worker is given an H-1B1 "Specialty Occupation" status, then the spouse and children are given H-4 status.

Who will submit Form I-129, Petition For Nonimmigrant worker?

Following categories:

  • E - International Traders and Investors
  • H - Temporary Workers
  • L - Intracompany Transferees
  • O - Aliens of Extraordinary Ability
  • P - Entertainers and Athletes
  • Q - Participants in International Exchange Programs
  • R - Religious Workers
  • TN - Canadians and Mexicans Under NAFTA

Who will submit Form I-539 (Application to Extend/Change Nonimmigrant Status)?

    The following nonimmigrant categories:

  • All dependants (spouse and children below twenty one years) of beneficiaries of Form I-129 Petition.
  • A - Diplomatic and other government officials, and their families and employees.
  • B - Temporary visitors for business or pleasure.
  • F - Academic Students and their families
  • G - Representatives to international organizations and their families and employees.
  • I - Representatives of foreign media and their families.
  • J - Exchange Visitors and their families
  • M - Vocational Students and their families
  • N - Parents and children of the people who have been granted special immigrant status because their parents were employed by an international organization in the United States.

You may include your spouse and any unmarried children under the age of 21 in your USCIS Form I-539 application if you are all in the same nonimmigrant category.

When Should I Submit?

    An application for change of status on behalf of your dependants or a petition on behalf you by your prospective employer must be submitted before your current nonimmigrant status expires. Your status expires can be found in the lower right-hand corner of your Form I-94 (Arrival-Departure Record, Little White Card) You should have received a Form I-94 when you legally entered the United States.

What If I Am Late Filing for a Change of Nonimmigrant Status?

    If you are late filing for a change of nonimmigrant status and your current status has already expired, you must prove that:

  • The delay was due to extraordinary circumstances beyond your control;
  • The length of the delay was reasonable;
  • You have not done anything else to violate your nonimmigrant status (such as work without USCIS approval);
  • You are still a nonimmigrant (This means that you are not trying to become a permanent resident of the United States. There are some exceptions.); and
  • You are not in formal proceedings to remove (deport) you from the country.

How Can I Appeal a USCIS Decision Regarding My Change of Status?

    If your application to change you nonimmigrant status is denied, you will not be allowed to appeal a negative decision to a higher authority on denial of application only. However, you may submit a motion to reopen or a motion to reconsider (MTR) with the same office that made the unfavorable decision. By filing these motions, you are asking the USCIS to either reexamine or reconsider their decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.

How do I know that I am eligible for change of my current status to H-1B?

    If you are in any nonimmigrant status (except VWPP, C, K, S, J with foreign residence requirement) and wish to change status to H-1B starting from October 1, you must make sure that your I-94 is valid until September 30, 2008. Else, you burned the bridge and ineligible for change of status.

For example: if you are admitted in other than H-1B status on January 1, 2008 and your authorized stay expires on June 30, 2008 and your prospective employer submitted new petition on April 1, 2008 with starting date of October 1, 2008.

Certainly you are ineligible to receive change of status, since your authorized is expired on or before September 30, 2008 and you are not eligible to receive change of status with effective from October 1, 2008 due lack of continuity of status.