This article will discuss:
H1B Consular Processing
H1B consular processing means getting an H1B visa stamp at a US embassy outside of US. Many H1B workers from India and China opt for going to Mexico or Canada for visa stamp to avoid travelling back to home country.
If you are currently in USA on a visa like F1 or H4, then you can apply your H1B in lottery using either option
- H1B as Change of Status – No need to travel outside US to activate H1B
- H1B as consular processing – Need to go out of US an get H1B visa stamp to start using H1B.
Is Consular Processing Mandatory?
If your H1B visa is approved and you are currently outside USA, you have no option but to get a visa stamp to enter US. The work ‘Consular processing’ means that you have to visit US consulate to get your application processed and approved.
In other cases where you are currently in US, your H1B may need consular processing if:
#1 H1B lottery consular processing
You filed your H1B lottery application as ‘Consular Processing’ application.
#2 H1B Transfer after i94 expiry
You joined a new H1B employer B on receipt and your pending H1B extension from employer A receives RFE after i94 expiry.
In this case, your H1B transfer may receive an RFE to wait for employer A’s bridge extension decision before your H1B transfer can be approved with new i94.
Many employers in this case decide to opt for H1B consular processing rather than waiting on the pending employer A’s extension as A may take their own time to respond to extension RFEs.
#3 Travel Outside US while H1B Change/Extension of Status is pending
USCIS will automatically abandon your pending H1B change or extension of status application if you travel while your application is pending.
The change of status or extension is specifically meant to get you a new i94 when you do not want to travel at all.
Now, if you travel after filing the application, you are doing exactly the opposite. Hence, USCIS will approve your H1B but with consular processing tag asking your to get a H1B stamp and then enter US.
Benefit of Consular Processing
You can control the date of your H1B activation. In case of first time lottery H1B change of status from F1 (OPT/CPT) to H1B or H4 to H1B, you are in a better position if you have filed it with consular processing option.
Many people currently working on OPT or H4 EAD will need to immediately switch to H1B job and its restricted terms and conditions on the day of approval. There is no way to find out the exact day USCIS will approve your application which will change your status printed on i94 immediately in case of ‘Change of status’ applications.
If you plan to keep working with OPT, CPT, H4 EAD, L2 EAD till the day you want, i strongly suggest to file your H1B application as ‘Consular processing’. This way, you can choose to go out of US and then enter using H1B visa at a date that you want to start working.
H1B Consular Processing Disadvantages
The biggest problem with H1b consular processing is that you have to go through one more step of scrutiny with US embassy and visa officer even though your H1B has been approved by USCIS.
There is a possibility that your H1B visa stamp is denied by US embassy in which case, you will not be able to return to US. You can file another H1B transfer or extension or amendment and can apply for another visa stamp though.
H1B Change of Status / Extension
Your status is always printed on your US i94. The status is what defines your purpose and visa type while you are in US.
When you are trying to change your status from any other visa type like F1, H4, B1/B2, L1 to H1B, you will file H1B change of status application if you do not want to travel.
Once your H-1B petition is approved, the approval notice (called i797) will come with a paper I-94. This i94 will show your status as ‘H1B’ and would change your status immediately on the start date.
The H1B extension is also the same concept except that you file it when you are currently on H1B status itself.
H1B Adjustment of Status vs Consular Processing
The phrase ‘adjustment of status’ is normally spoken in the context of i485 green card application. When someone files the i485 application while they are in US, it is called adjusting the status from current status to Green card status.
In the context of H1B, ‘adjustment of status’ and ‘change of status’ mean the same thing and signifies that you are moving from some other visa type to H1B.