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H-1B CAP: When to File as a Change of Status VS. Consular Processing

February 13, 2018

Foreign nationals with H-1B Cap petitions often have questions regarding travel while filing. While the answer may seem straightforward, it depends on the type of H petition filed. There are two options: requesting a change of status or consular processing. Below is a summary that clarifies some of these complex concepts:

Considerations of Filing a Change of Status H-1B Cap Petition:

A foreign national whose H-1B petition is filed and approved as a change of status (COS) will automatically be in H-1B status on October 1, or once the petition is approved, whichever is later.

Travel Restrictions

When filing a COS H-1B petition, the foreign national can not travel internationally while the petition is pending with USCIS. If international travel occurs before the approval of the H-1B petition, USCIS will change the petition to be processed via consular processing. [See the next section for the implications of consular processing.]

Dependents

As the beneficiary of an H-1B petition, foreign nationals are permitted to concurrently file for a change of status for their dependents. USCIS will typically adjudicate the H-1B and H-4 applications at the same time, and the dependents will automatically change to H-4 status on October 1, or once the application has been approved by USCIS, whichever is later.

Considerations of Filing an H-1B Cap Petition Under Consular Processing

The main difference between filing an H-1B Cap under consular processing (rather than as a change of status processing) is how the beneficiary’s status takes effect. While a change of status automatically occurs on October 1, under consular processing the beneficiary is required to travel internationally and apply for a visa at a US Consulate or Embassy to re-enter the U.S. in H-1B status. A foreign national can enter the U.S. in H-1B status as early as 10 days prior to October 1.

For beneficiaries currently abroad, their dependents may also apply for an H-4 visa using the H-1B approval notice. For beneficiaries currently in the US, dependents must accompany the principal applicant abroad and apply for H-4 visas to maintain their status.

Special Consideration for Individuals Relying on Cap-Gap Extension

Cap-gap allows those currently working in F-1 OPT that expires before October 1 to extend their work authorization until their H-1B status goes into effect on October 1. To use the cap-gap provision, the H-1B petition must be filed requesting a change of status, and the applicant will not be able to travel internationally while the petition is pending.

Questions? EIG is here for any questions or concerns you have regarding your case.