What is Change of Status in USA? What is 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.

Written by Am22tech
  By Am22tech      Updated  25 Aug, 19

  12    


Change of Status Application Meaning

Change of status means that your change your US visa type.

Basically, If you want to change the purpose of your stay in USA from the one you used to enter, you have to file a COS using form i539 application with USCIS. Your current status is mentioned on your i94.

Example:

If you entered USA on H1B visa, your status is H1B and the same is printed on your i94. Your dependent spouse and kids would have the status as H4. Check their i94 and you should be able to verify.

Similarly, if you came to US on study visa F1, you can apply to change it to H4 if you marry an H1B person in USA. You can use this sample i539 form to file H4 COS application yourself.

Many students also file their H1B application each year in April lottery to start working in US.

 

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 your are in USA.

Examples:

  • H4 to H1B COS application – If you are currently on H4 visa in 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 though.
  • H4 to H1B Transfer with 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 have 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. In 2018, H1B premium processing was suspended for all H1B transfer, extension and amendment applications temporarily.

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

Check current H4 and L2 Change of Status processing time.

 

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 i94 expiry.

Even though you are not actually in a lawful status, you do not accrue “unlawful presence” while your change of status application is pending if it was filed prior to I-94 expiry.

Example

If you are currently on H1B visa and filed h1b extension with H4 Change of status application before i94 expiry, you can still stay and work in US up-to 240 days.

  1. Your status will change to H4 if your H4 COS is approved before H1B extension,
  2. 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 US after i94 expiry legal. If it is approved before i94 expiry, the new status validity will start from 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 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 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.

Example, If you are currently on H4 status and apply for 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 change of status pending.

 

Change Status from B1 to B2

B1 and B2 are part of same visa and you can use it for either business or tourism purpose. There is no need to apply change of status from B1 to B2.

 

Is COS Required for attending School in USA?

You do NOT need to apply for COS in this case if you are spouse or child of any of these primary visa holder:

ClassVisa type
ADiplomatic and other government officials, and employees
EInternational trade and investors
GRepresentatives to international organizations and their employees
HTemporary workers
IRepresentatives of foreign media
JExchange visitors
LIntra company transferees
F, MAcademic (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 US with any of these visa category, you cannot apply for COS while you are in USA.

ClassVisa type
CAlien in Transit
DCrewman)
K-1 or K-2(Fiancé(e) or Dependent of Fiancé(e))
K-3 or K-4Certain Husbands and Wives of U.S. Citizens & their Dependent Children
SWitness or Informant
TWOVTransit without Visa
WT or WBUnder the Visa Waiver Program

Source: USCIS

If you are in any of the above categories, you must leave USA on or before the date your I-94 expires and re-enter with desired new visa category. Change of status in USA

Source: DHS


USA
 






   12 Useful Questions & Answers from comments



  1. Sean
    Sean 21 May, 19 at 10:07 pm

    Hi, here is my situation — I had to take responsibility of a project failure and had to resign company I’m working for past 6yrs.
    Last Wednesday was my last date – here is my situation . My current employer is paying until end of this Month. My H1B and I-94 expires in July 30th with approved I-140, Below are my few questions —

    Will l I be out of status from next Month June since I don’t have payroll running on my name.?? or since my H1 and I-94 is valid until July 30th will I be falling under 60 days grace period.??? or is it 60 days after my current H1 expires >> ??
    My Wife has approved H1B, how soon do I need to initiate transfer to H4, I ?? if I initiate H4 process and meantime I get a new Job,where they file H1 -can I work there with my H1 receipt number ??
    If I get a new job- do I need to file new H1 from H4 and wait until next April ???


  2. Sanddeepp
    Sanddeepp 17 May, 19 at 5:10 pm

    Hi
    I am holing H1-B approved and stamped till Aug 07 2019. I-94 is going to expire on same day. My last date in company was on 12 April 2019 and my last pay generated on 25 April. I don’t have any transfer or extension.
    How many days I can stay in US. Also If I want to convert to H4 what will be the process.


    • Anil Gupta
      Anil Gupta 17 May, 19 at 9:01 pm

      If you lost your job, then you can stay up-to 60 days in USA as per H1B grace period rule.

      You should file H1B to H4 change of status within these 60 days if you want to stay beyond 60 days. You can use this sample i539 form for file H4 COS application.


      • Sanddeepp
        Sanddeepp 20 May, 19 at 8:13 am

        From which date 60 days counted. Last pay duration (1-15 date) or salary date or last day in company.


        • Anil Gupta
          Anil Gupta 20 May, 19 at 8:25 am

          Last day in company.


          • Sanddeepp
            Sanddeepp 22 May, 19 at 1:19 pm

            While processing H4, If I got the job then can I do H1 transfer?


            • Anil Gupta
              Anil Gupta 22 May, 19 at 1:32 pm

              You can file any number of applications as you want but you will keep adding complexity to your case.
              If H4 is approved after h1B, then you status will automatically change to H4 and then you won’t be able to work starting the day of approval. So, you need to plan accordingly.


              • Sanddeepp
                Sanddeepp 28 May, 19 at 10:03 am

                Can I file CAP exemption after H4 approval?


                • Anil Gupta
                  Anil Gupta 28 May, 19 at 12:18 pm

                  You can file cap exempt H1B anytime without i140 until you have used the 6 year quota.


                  • Sanddeepp
                    Sanddeepp 3 Jun, 19 at 1:04 pm

                    I applied for H4 and USICS got fedex delivery today. Till the time H4 approval, can I transfer my H1-B if I got the job.


                    • Anil Gupta
                      Anil Gupta 3 Jun, 19 at 1:34 pm

                      You will add complexity to your case if you file H1B now. The timing of each’s approval might mess up your status.



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