What is Change of Status in USA (Start date?)
Change of Status in USA for H1B or H4 start only after USCIS approval. Out of status if i94 expired & USCIS COS decision pending.
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Change of status means that you change your US visa type.
Basically, If you want to change the purpose of your stay in the USA from the one you used to enter, you have to file a COS using the form i539 application with USCIS. Your current status is mentioned in your i94.
Example:
If you entered the USA on an H1B visa, your status is H1B and the same is printed on your i94. Your dependent spouse and kids would have the status of H4. Check their i94 and you should be able to verify.
Similarly, if you came to the US on a study visa F1, you can apply to change it to H4 if you marry an H1B person in the USA. You can use this sample i539 form to file the H4 COS application yourself.
Many students also file their H1B application each year in the April lottery to start working in the US.
This article will discuss:
Status Start Date
Your i94 status does not change until USCIS actually approves your COS application. Your visa type does not change from the USCIS receipt date.
You can request a specific date in your application to start your new visa type. USCIS may or may not approve your application before this requested date.
The new status starts as and when USCIS approves it. Until you receive approval (i797 and new i94) from USCIS, do not assume the status has been approved, and do not change your activity while you are in the USA.
Examples:
- H4 to H1B COS application – If you are currently on an H4 visa in the US and have filed for H4 to H1B COS application, do not start working until your H1B application is actually approved. The exception is with H4 EAD holders who have the EAD card to work through.
- H4 to H1B Transfer with the change of status (COS) – The H1B transfer with COS should be approved first to change your status from H4 to H1B to start working.
- H1B to H4 COS – You can keep working using H1B until your H4 COS is approved by USCIS. You should apply as soon as you need to change to a different visa category and before your i94 expires.
Apply COS to Work Visa
Your employer has to file Form I-129 before your Form I-94 expires to change your status if you are planning to work.
Premium processing (result in 15 calendar days including RFE) is available unless it has been specifically suspended.
Allowed Visa types: E-1, E-2, E-3, H-1B, H-2A, H-2B, or H-3, L-1A or L-1B, O-1 or O-2, P-1, P-2, or P-3, Q-1, R-1, TN-1 or TN-2
Dependent’s change of status If your dependents (spouse and child < 21) also want to change status to remain as your dependents based on your new work status application (like H4 dependent for H1B), they need to file Form I-539.
It is recommended to file the I-129 and I-539 forms together so that they can be worked on at the same time. Remember, though, that they are separate applications and need separate supporting documents.
Apply Change to Non-Work Visa
You should file Form I-539.
Allowed visa types: A, B-1 & B-2, E-1 & E-2, E-3, F, G, H-4, L-2, M, N, NATO, O-3, P-4, R-2, TD
i94 Expiry while Status Request Pending
Your current visa status ends and you are out of status once your I-94 expires, even if you have applied to change your status before the i94 expiry.
Even though you are not actually in lawful status, you do not accrue “unlawful presence” while your change of status application is pending if it was filed prior to the I-94 expiry.
Example
If you are currently on an H1B visa and filed an h1b extension with an H4 Change of status application before the i94 expiry, you can still stay and work in the US for up to 240 days.
- Your status will change to H4 if your H4 COS is approved before the H1B extension,
- If your H1B extension is approved before H4 COS, your status will remain H1B until your H4 COS is approved.
USCIS Change Approval
Your change of status application approval will make all your time spent in the US after the i94 expiry legal. If it is approved before the i94 expiry, the new status validity will start from the date of approval.
1. i797 with i94 start and end date after Approval
You will receive a new i797 notice of approval with a new i94 attached to it with the approval start and end date.
2. Visa Stamping after COS approval
There is no need for visa stamping unless you plan to go out of the USA. Once you are out, you will need a new visa stamp for your current visa category that you plan to use to re-enter.
3. Current Visa Stamp Validity after Change of status approval
Any non-immigrant visa in your passport granted in connection with your classification becomes void.
Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).
Status Change USCIS Denial
If USCIS denies your COS application, your status remains the same as the current one.
For example, If you are currently on H4 status and apply for a change of status to H1B and it is denied by USCIS, your status will continue to be H4 dependent.
This could have serious implications with USCIS’s NTA forceful deportation policy even if you have an application for a change of status pending.
Change Status from B1 to B2
B1 and B2 are part of the same visa and you can use them for either business or tourism purposes. There is no need to apply the change of status from B1 to B2.
Is COS Required for attending School in the USA?
You do not need to apply for COS in this case if you are the spouse or child of any of these primary visa holders:
| Class | Visa type |
|---|---|
| A | Diplomatic and other government officials, and employees |
| E | International trade and investors |
| G | Representatives to international organizations and their employees |
| H | Temporary workers |
| I | Representatives of foreign media |
| J | Exchange visitors |
| L | Intra company transferees |
| F, M | Academic (F visa) or vocational (M visa) students (you may attend elementary, middle or high school only: if you want to attend post-secondary school full-time you must apply for a change of status). |
Change of Status Exceptions
If you entered the US with any of these visa categories, you cannot apply for COS while you are in the USA.
| Class | Visa type |
|---|---|
| C | Alien in Transit |
| D | Crewman) |
| K-1 or K-2 | (Fiancé(e) or Dependent of Fiancé(e)) |
| K-3 or K-4 | Certain Husbands and Wives of U.S. Citizens & their Dependent Children |
| S | Witness or Informant |
| TWOV | Transit without Visa |
| WT or WB | Under the Visa Waiver Program |
Source: USCIS
If you are in any of the above categories, you must leave the USA on or before the date your I-94 expires and re-enter with the desired new visa category.
Source: DHS
