February 17, 2016
Minsky, McCormick & Hallagan
Many clients want to know whether they should request an H-1B based on a change of status or consular processing. Below is a discussion of each option to help you determine which best fits your current situation.
Change of Status to H-1B
For an individual currently in the U.S. in another status that will last until the start date of an H-1B, the sponsoring employer may request a “change of status” on the H-1B petition. This means that on the start date of the H-1B approval, the individual will automatically change to H-1B status without having to take any further actions. There is no need for the H-1B holder to travel abroad to obtain a visa stamp at a U.S. Embassy/Consulate after approval for the change to H-1B to occur. The H-1B visa stamp will only be required if the H-1B holder later decides to travel abroad after switching to H-1B status. That is because an H-1B holder must always have a valid H-1B visa stamp in his or her passport in order to re-enter the U.S. The exception to this is for Canadian nationals, who by law are not required to have visa stamps in their passports.
An individual will know if the H-1B was approved for a “change of status” if the I-797A, Notice of Action, otherwise known as the “approval notice,” includes a Form I-94 on the bottom of the notice. The following is an example:
Employers should take note of this automatic change for current employees and be sure to update the Form I-9 record no later than the date that the employment authorization or employment authorization document expires, whichever is sooner. The most common scenario where this is required is when employees are working pursuant to Optional Practical Training (“OPT”) work authorization and switch to an H-1B automatically on October 1st. Employers can reference the I-9 Handbook for Employers to determine how to accurately update the Form I-9.
Employers should note that for an individual with an OPT work authorization expiring after April 1st, the filing of a new cap-subject H-1B petition for a change of status will automatically extend the OPT work authorization until a decision is made on the H-1B petition. This is known as a “cap-gap” extension. Individuals with OPT work authorization expiring before April 1st or those working pursuant to Curricular Practical Training (“CPT”) do not have this extension available.
Consular Processing H-1B
There may also be situations where a sponsoring company requests an H-1B for “consular processing.” If this option is chosen, the individual can only start working in the U.S. on that H-1B by going to a U.S. Embassy/Consulate abroad, obtaining an H-1B visa stamp in his/her passport, and then entering the U.S. based upon that H-1B visa stamp and the H-1B approval notice.
Consular processing is normally chosen if an individual currently lives outside U.S. or is in the U.S. in a status, such as on a B-1 visa, which expires before the H-1B would start. Consular Processing also may be chosen so that individuals have more control over when their H-1B actually starts, providing them greater flexibility when determining how to take advantage of the six-year maximum of H-1B status. For example, if an individual from Mexico is in TN status, which does not allow for the intent to obtain a green card, but wants the option of starting the green card process in the future, he/she can apply for a consular processing H-1B. Upon approval, that individual can then “activate” the H-1B at any point during its validity once he/she is ready to start the green card process. The individual can do this by traveling abroad, obtaining an H-1B visa at a U.S. Embassy/Consulate, and then returning to the U.S. in H-1B status based on the H-1B visa stamp and approval notice. This is also a potential option for individuals who would like to maximize their time working on OPT before starting on an H-1B, whether for tax purposes or to delay the start of the six year H-1B period. However, we recommend discussing this option with one of our attorneys before making this decision, as there are several issues to be aware of before choosing this option.
An individual will know if the H-1B was approved for a “consular processing” if the I-797A, Notice of Action DOES NOT include a Form I-94 on the bottom of the notice and states that notification was sent to the listed consulate. The following is an example:
If you have any questions regarding the H-1B process and whether to request a change of status or consular processing, please contact our office to speak with one of our qualified attorneys.