H1B Consular Processing vs Change of Status Difference

H1B consular processing is better if you want to control H1B start date when moving from F1, OPT, H4EAD. Change of status gives new i94 attached to i797.

Written by Am22tech
  By Am22tech      Updated  31 Jan, 20

  16    


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.

H1B i797 with attached i94
H1B i797 with attached i94

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.


USA
 






   16 Useful Questions & Answers from comments



  1. Soham Tyagi
    Soham Tyagi 31 Jan, 20 at 4:25 pm

    Hello Anil,

    Your article is great and appreciate your response to other’s question. I need you thought on my situation. I did MS in CS IT and working as Software engineer. Recently I started MBA. I am currently on CPT. My h1 is picked in 2019 lottery. My current employer filed it with consular processing.

    If it is approved, and I have another full time opportunity can my new employer file h1 transfer if even if I don’t go for stamping?

    Second question is can my new employer file transfer as change of status?

    If one of above is possible then can I start working for my new employer on CPT before getting transfer approved? Will my Current course which is MBA and my job is in IT will conflict?


    • Anil Gupta
      Anil Gupta 31 Jan, 20 at 4:25 pm

      You have asked too many questions in one go. I suggest to ask questions not related to this page on forum.

      You can file H1B transfer as change of status after approval in lottery as consular processing.


  2. Srinivas Kumar
    Srinivas Kumar 23 Jan, 20 at 6:15 pm

    Hi Anil,
    Really appreciate your answers to the questions being shared by us.

    In need of recommendations/suggestions. My wife is currently working on H4-EAD. Her current employer is willing to file her H1B Visa in 2020 lottery (Will request consular filing as per your answers given to others questions).

    Her current H4 Visa and my H1B Visa is stamped till August 2020, if we travel to India after October 2020 (Given her H1B is approved with her employer, consular filing).

    We will be going for H1B extension stamping with my current employer, Is it compulsory for her to change her Visa from H4 to H1B for the Visa interview when she goes to the consulate? Or can she continue to be on H4 as my dependent?

    We would like to continue her H4 Visa (EAD Benefits) if possible else we would ask her current employer to not file her H1B.


  3. Juggernaut
    Juggernaut 8 Jan, 20 at 1:41 pm

    Hello,

    I have a quick question. I was laid off at employer A in Oct 1st week 2019 with my h1b & i94 expiring in 2021. I received my job offer at company B after the 60 day grace period and I departed the US after the grace period. My new H1b was filed with consular processing after the grace period and is approved with validity till 2021. I am currently in India and waiting for paperwork from the lawyer. Am I required to appear for an interview or can I use the dropbox facility? I do meet all the requirements for dropbox. Thanks.


  4. sonal deshmukh
    sonal deshmukh 8 Jan, 20 at 1:41 pm

    Hi Anil,

    I am currently working on H4 EAD and have approved H1B back in June 2019 from my current employer (not filed as change of status).
    If I plan to switch job – Can my new employer file H1B transfer considering I am not on H1B status currently
    OR I need to get on H1B visa status first (by getting it stamped) before new employer initiates H1B transfer?

    Appreciate your help!

    Thanks,
    Sonal


  5. Rohit Chetty
    Rohit Chetty 16 Dec, 19 at 2:37 pm

    Hi,

    My wife is currently on an H4 EAD working. She had her H1B approved as ‘Consular Processing’ back in March 2019. We’re planning on a vacation to Europe soon. Does she HAVE to get her H1B stamping before we re-enter or can she just re enter on her existing H4 visa and save converting to H1B for the next time we travel to India?

    Thanks in advance for your help.

    Rohit.


    • Rohit Chetty
      Rohit Chetty 23 Dec, 19 at 2:24 pm

      Hi Anil, can you please advice?


  6. Dhaval
    Dhaval 16 Dec, 19 at 2:37 pm

    Hi, I am on OPT which is expiring soon. My employer filed my initial H1 in 2019 April with regular processing. Got RFE in July, submitted response in October(regular processing). haven’t got any update yet. few questions.

    1. I just came to know that my employer chose consulate processing instead of change of status. So meanwhile my application is in process is there a way to change it change of status? if so how?
    2. Can I change my application to premium processing from normal?

    What would you recommend in both case.


    • Dhaval
      Dhaval 16 Dec, 19 at 2:37 pm

      One more question. Can I go to CANADA for myself and my wife’s stamping ?


    • Suresh
      Suresh 8 Jan, 20 at 1:41 pm

      I am on STEMP OPT. My h1b is also applied through consulate processing. I have a question. If my h1b is approved and I have another job offer. Can that employer apply my h1 transfer with change of status and star working for new employer after I get receipt? or I have to go out of US and get stamping done?


  7. Nizam007
    Nizam007 16 Dec, 19 at 2:37 pm

    Hi,
    I am currently in US on F1 CPT . Got my H1b consular processing approval with I797B( without i94 and no consulate name on it, i transferred and got approved to a nee employer). Can i attend my h1b visa interview in CANADA?
    Thank you


    • Anil Gupta
      Anil Gupta 16 Dec, 19 at 2:38 pm

      You can attend H1B visa interview in Canada.


  8. Sri
    Sri 30 Jul, 19 at 2:19 pm

    Hi Anil,

    I need your advice….

    I have applied h1b in 2018 and got approved in April 2019 through a consultant. I was working in product company in EAD previously before applying for H1B and after getting my H1b, my product company agreed to transfer visa but it took almost 2 months for them to process my visa transfer and till 2 months i didnt work for my h1b employer who sponsor my visa. I joined the product company in receipt and when I transfer my visa uscis is asking for pay stub for 2 months as RFE.. What will happen to my visa if I dont have my pay stubs .. I checked with my consultant and he is not agreeing to provide any documents to me.. so what is going tohappen to my visa..


    • Anil Gupta
      Anil Gupta 30 Jul, 19 at 2:37 pm

      Was your H1B approved with Change of Status? Were you working earlier using H4 EAD?
      Assuming you moved from H4 to H1B, you should have started working immediately on H1B COS approval.

      If you did not work, then it is counted as violation of H1B status. Your H1B transfer can be denied on the basis of this violation.


      • Sri
        Sri 30 Jul, 19 at 2:44 pm

        Yes my h1b approved with cos but I didnt work for the consultant because he didnt have any projects and i was in bench for 2 months and looking for job .. since I got my previous job , I have initiated transfer.


        • Anil Gupta
          Anil Gupta 30 Jul, 19 at 2:45 pm

          You cannot stay un-employed on H1B visa. If you did not have any projects, you should have left US and returned when the H1B project was available.