H1B Extension after i140 Approval (with B2 COS Pending after 6-yr Max Out)
File H1B to B1/B2 Change of status before 6th year max out. Once i140 is approved, file H1B extension in consular processing while B2 is pending.
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Many people have applied H1B to B2 Change of Status in the COVID-19 situation as they could not travel out of the US but were reaching the end of the 6th year.
Filing B1, B2 Visa COS
What most people are doing based on their H1B employer & attorneys plan of action:
- Stop working 1 week before your H1B max out date (end of 6th year).
- File H1B to B1 or B2 Change of status Application using form i-539. Also, file H4 to B2 COS for your dependents. B1/B2 change of status fees.
- Wait for i140 approval.
- File H1B extension with ‘consular processing’ with approved i140.
The best option would be to exit the US rather than filing a B1 or B2 change of status. If you cannot travel due to COVID-19 travel restrictions, you can follow the plan listed above.
Once your i140 is approved, you will follow this plan to get back onto H1B status and start working:
If your B2 Change of Status application has already been approved by USCIS, then you can file your B2 to H1B Change of Status application along with your approved i140 copy.
You will be lucky if your B2 gets approved within 3 months though.
If the B2 application is pending with USCIS, the safer, faster, and recommended option is to file an H1B extension with the ‘consular processing‘ option.
Applying for an H1B extension with the option to get a visa stamp outside the US is preferred because:
- USCIS will not approve your H1B until your pending B2 COS is approved first.
- B2 approval can months without any premium processing option.
On the other hand, you can get H1B approval within 15 days using premium processing and then go out to Mexico or Canada to get the visa stamp and return to the US for work.
This is the same guidance that many lawyers including attorney Rahul Reddy from Reddy-n-Neumann PC. Listen to him in this video chat here (watch from 21:08 to 22:56):
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H1B extension with consular processing when H1B to B2 change of status is pending simply because USCIS will not approve your H1B until your pending B2 is approved first.
B2 does not have any premium processing option and can take more than 6 months to get a result. Also, B2 cannot be approved until you have given your fingerprints at USCIS biometric center.
You are better off filing H1B with the visa stamp option as you can file an H1B premium upgrade and then visit the US embassy to get a new H1B visa stamp.
You will get an approval notice in the form of i-797B without a new i94.
You can visit Canada or Mexico to get an H1B visa stamp after consular processing approval.
The pending B1/B2 Change of status application will be automatically abandoned by USCIS once you leave the US. This means that it will be denied ultimately.
There is no need to worry as your time from your date of receipt to the date of your exit will be considered a ‘period of authorized stay’ as per US immigration law.
The denial of B1/B2 will not affect your entry to the US on an H1B visa once you have got the visa stamp.
Your family or dependents on H4 also need to travel outside the US and get their H4 visa stamp.
This is because they are also waiting to get their own B2 visa approval in the US. They need to get back to H4 as soon as you get into H1B status to stay legally in the US.
If both you and your spouse are on your own individual H1B visa in the US, then only the one whose h1B 6-year quota is exhausting should file an H1B to B1/B2 change of status.
Only you would be required to get a visa stamp outside the US if your i140 gets approved while the B1/B2 application is pending.
You can use dropbox after H1B approval in consular processing.
Check if you are eligible for the interview waiver.
You cannot use a valid B1/B2 visa stamp if you are physically present in the US on some other visa type like H1B.
A visa stamp in the passport can only be used to enter the US. Once you are in the US, your status can only be changed by applying a new application using form i539 with USCIS.
You can change status by using the B1/B2 visa stamp if you exit the US and then renter using your B1 visa. If you do this, you can avoid filing B1/B2 COS with USCIS.
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