What to do if you are not selected in the H-1B lottery? “Change of Status” within the U.S.

Abstract: Change of Status (abbreviation: COS) is defined as changing a type of nonimmigrant status to another type of nonimmigrant status while staying within the U.S. territory. In this article, attorney Hui Zeng from Zeng Law Group, PLLC is going to further breakdown and explain in detail the COS process.

Real Case: Ming and Hong are a married couple. Hong holds an H-1B visa and Ming holds an F-1 visa. After graduation, Ming’s employer submitted an H-1B petition for Ming, however, the petition was not selected in the lottery process. As a result, Ming is faced with the issue of COS- petitioning to change from the F-1 status to H-4 status (the legal status of the spouse of the H-1B status holder).

1. What is Change of Status (COS)?

It is defined as a process of applying for status change in one type of nonimmigrant status to another type of nonimmigrant status through the USCIS without leaving the U.S. In this real case scenario, we will explore Ming’s process of changing from F-1 status to H-4 status.

2. Instead of choosing COS, why not just visit the U.S. consular/embassy overseas to process the change?

Advantage of COS: First, Ming can save on his airfare. Second, Ming can avoid the risk of being denied from his onsite visa interview. Meanwhile, Ming can stay in the U.S. legally as his application is being reviewed.

Disadvantage of COS: In the period that Ming’s case is being reviewed, he is not permitted to leave the U.S. By leaving the U.S. during the review period is equivalent to withdraw the application.

3. What should Ming pay attention to as he is proceeding through with the COS?

90 days rule

90 days rule is referring to the applicant entering the U.S. as a non-immigrant status and submitted a COS application seeking to change from the current status to another non-immigrant status within 90 days after his/her entry to the U.S.. In this scenario, the case will likely be denied on the basis of the “presumption of misrepresentation” upon the entry by the USCIS. For example, Ming entered the U.S. with a B-Visa, however, within ninety days, he applied for the COS into an F-1. Given that Ming entered the U.S. with a travel visa, the USCIS will thereby conclude that he is dishonest and has an underlying motive for using the travel visa to study in the U.S. The COS petition is likely to be denied if this hypothetical theory is taken up by the USCIS.

The applicant should hold a legal status by the time of submitting the COS petition

Ming should have already obtained a legal F-1 status by the time of his COS petition. The principle is clear and easy: COS is changing from one type of legal and non-immigrant status to another type of legal and non-immigrant status. If Ming had stayed in the U.S. illegally, then he would not be able to use the COS system in changing to another type of legal and non-immigrant status.

Upon the submission of the COS petition and before the USCIS has finalized a decision on the COS, Ming is not permitted to depart the U.S., otherwise, his petition will be denied.

4. What status should you hold during the period of the COS petition?

If Ming’s petition is approved:

If Ming’s petition is denied:

5. What are the precautions and related punishments after the COS application is denied?

If Ming’s COS application is denied and his previous status expired, then he must leave the U.S. immediately. Ming will not face any punishment if he leaves immediately. Also, he can apply for a new visa upon his return to China in which there may be another opportunity of entering the U.S. However, if Ming does not leave immediately, he will possibly face the legal procedure of “removal proceeding”. And according to the reasons for his departure (voluntary departure after illegal stay for some time vs departure enforced by public authorities after removal proceedings), Ming will face different punishment measures:

Removal proceeding

Removal proceeding refers to the litigation procedure initiated by the U.S. Department of Homeland Security and is decided by the judge of the immigration court, which is used to determine the removability of foreigners. If the defendant of the first instance, that is, the foreigners, does not reserve the right to appeal, then the first judgment of the first instance will immediately become a “final remove order”; If the right to appeal is reserved and the appeal is made within 30 days, the judgment made by the court of the second instance shall have the final effect in determining the removal.

During the 90 days execution of the final remove order, the U.S. Immigration and Customs Enforcement holds the right to detain the removed person.

If the person entered or attempted to enter the U.S. illegally after being removed, the person will face a punishment of a “permanent bar”.

Voluntary departure

The applicant should leave the country immediately after being denied. If the applicant does not leave the country immediately but leave the country voluntarily after a period of illegal stay, the applicant will face different punishments according to the length of the stay (note: the calculation for the length of the illegal stay starts from the time when the petition is denied):

(1) Before the start of the removal proceeding, if the illegal stay duration exceeds 180 days but is less than one year, then the applicant will be banned to enter the U.S. in the next 3 years.

(2) If the illegal stay duration exceeds 1 year in the U.S. whether if it’s before, during, or after the removal proceeding, the applicant will be banned to enter the U.S. in the next 10 years.

(3) If the applicant’s total accumulation (without continuity, the number of illegal stays can be added separately) of the illegal stay in the U.S. exceeds 1 year, and the applicant has entered the U.S. or attempted to enter without any legal reason (reasons can be “formally admitted” or “temporarily paroled”), then the applicant will be permanently prohibited to enter the U.S.

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Biography of Attorney Hui Zeng:

Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.

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