Change the H-1B from consular processing to change of status? Yes, you can!
Abstract: Under the impact of the Pandemic and the President’s executive order, some of our clients were required to go abroad to activate their status (consular processing) and faced many obstacles. Is it possible to change from an approved consular processing H-1B case to an approved change of status H-1B case? The answer is, yes! The main purpose of this article is to share with you the possible ways to successfully converting your status without going abroad. Please contact us if you have any questions about this area.
Real Case:
Client W’s employer submitted the H-1B petition in 2019 with a change of status within the U.S. request. The client’s H-1B petition was approved in 2019, however, due to CPT, the request for change of status within the U.S. was denied and Client W had to leave the country to activate the H-1B visa through consular processing. The client’s original plan was to leave the country and activate the status through the consular processing in 2020, but due to the pandemic and the President’s Executive Order, the client was forced to forsake this plan. However, the client wished to file another application so that the USCIS could allow him to change the status in the U.S. instead of the consular processing. We assisted the client in preparing the complete package of the petition for change of status, and the petition was directly approved. The client’s status was successfully changed to H-1B in the U.S. and had started working for the employer, without leaving the country.
Question 1: Can H-1B Beneficiaries who have been approved for overseas activation file another petition to request a change of status in the U.S.?
Answer: Yes
Question 2: Will USCIS review the petition again? Is it possible for USCIS to issue RFE for Speciality Occupation and such?
Answer: Yes. A previous approval does not guarantee that you will be approved this time. This is the same for many of the clients receiving RFE notices for their H-1B extension petitions. Therefore, it is important to provide sufficient materials to ensure the petition's completeness.
Question 3: I was previously denied the change of status because of CPT. Is CPT likely to cause my petition for a change of status to be denied this time?
Answer: It’s possible. Given that the client also has a history with CPT, in this case, we did provide sufficient legal materials to support the client’s practicality of changing the status in the U.S. Client W’s petition for change of status was finally approved. To sum up, you will not know until you try it. Therefore, you can discuss with the attorneys whether if they are willing to give it a try.
Note: we know that some attorneys are conservative about taking this approach. We advise that you discuss this openly with the company’s attorneys and determine if this approach will be right for you.
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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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