Monday, December 28, 2015

Understanding the “change of status” portion of the H-1B process

If you are reading this post, then perhaps you have F-1 student status. If so, you probably hope to later gain H-1B status and to do so without have to leave the United States.  In this case, the information below may be important and useful to you.

This process of going to H-1B from F-1, while remaining in the United States, is called a “change of status.” Many students who are in F-1 status prefer the change of status to the alternative of leaving the United States, gaining an H-1B visa and re-entering the United States with that visa. This latter method, called “consular processing,” is generally more time consuming and expensive due to the travel involved.

The employer of an H-1B person is supposed to indicate, on the H-1B petition, if the F-1 beneficiary (that is, the person who seeks H-1B status) wants a change of status to H-1B. If so, then the best result for that person is that in addition to getting an approval of the H-1B petition itself, the person also gets an approval of the request to change status.

Please note that these two approvals involve separate issues. The approval for H-1B status depends in large part on the complexity of the job and the qualifications of the beneficiary. The approval for change of status from F-1 to H-1B depends in large part on the person’s eligibility for such change of status. Many times, a person will be approved for both H-1B status and for a change of status. On the other hand, a person might be approved only for H-1B status but be denied the request for change of status.  Such a result can be serious, and a person in this situation might want to consult an attorney to discuss its implications.

To reduce the chances of a denial of change of status, a person should make sure of the following:

-          Maintain the conditions of F-1 status

The immigration regulations state that a person who has failed to maintain the conditions of his or her current status is ineligible to seek a change of status. With respect to an F-1 student, the following actions, among others, constitute a failure to maintain status:

o   engaging in unauthorized employment

o   failing to maintain a proper course load

o   failing to make academic progress

o   exceeding, during optional practical training, the allowable unemployment period

In other words, avoiding these actions will improve your chances of being approved for a change of status.

-          Avoid abandoning the request for change of status

A person should also be careful of doing anything that will cause the government to declare that you have abandoned your application to change status. In particular, a person who leaves the United States during the time his or petition is being reviewed is deemed to have abandoned the application to change status. This situation applies even if the person later returns to the US on his or her F-1 visa prior to the decision on the petition. Therefore, such a person might want to consider remaining in the U.S. while the petition is being reviewed.

At this point, you may be wondering how a person knows about the approval, or not, of the application to change status. The result generally will come along with the decision on the H-1B petition itself. If both the H-1B status and the application to change status are both approved, then the I-797 approval notice will say so.  On the other hand, if the H-1B status is approved, but the change of status is denied, then the I-797 notice will refer only to the former, and omit the latter. In addition, the employer will receive a separate “notice of decision” which explains the reasons for the denial of the change of status.

Maintaining current F-1 or other status is critical for approval of a change of status to H-1B.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
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