As we get closer to the end of the FY 2023 H-1B cap season filing window, there are a few things to keep in mind between now and transitioning to your H-1B visa.
First, remember that the H-1B is set to be effective no earlier than October 1, 2022. You cannot begin working pursuant to your H-1B until that date. Therefore, if you are in the United States, be sure you continue to your underlying non-immigrant status. If you are in a non-immigrant status that does not allow work authorization, do not work until the change of status takes place.
Second, if you are in the United States on another non-immigrant visa, and you believe you applied for a change of status, be sure the change of status was actually approved. USCIS can approve an H-1B petition but still deny the change of status if there was an issue with your previous status or if insufficient documentation was submitted to qualify you for the change of status. Be sure you got an I-94 at the bottom of your I-797, otherwise you will have to go through consular processing to activate your H-1B. A sample of a change of status petition with the change of status approval is below:
As you can see the language in the middle states that the “change of status has been approved.” This as well as the I-94 at the bottom shows that the change of status is approved and on October 1, or upon approval if your case is approved after October 1, you will change status to H-1B.
If you have a change of status approved, do not forget how it may impact your spouse or any dependent children. If you are on an F-1 visa, and set to change status on October 1, and your husband is on F-2 visa, you will need to be sure you have filed a change of status to H-4 for him in order for him to continue to maintain status.
Another piece of guidance is to not seek to change employers before your H-1B takes effect on October 1st. In order to be counted against the H-1B cap, you need to have your change of status approved and effectuated on October 1st or get an H-1B visa stamp. More on that here:
If you attempt to change employers prior to October 1, there are a few things to consider prior to doing so. First, USCIS may not approve a transfer petition as you technically can’t file as cap exempt as you are not yet counted against the cap. Second, your current H-1B employer could withdraw your H-1B since you are no longer employed by them. This could impact your ability to be counted against the cap if it is done before October 1st. For those that need to get H-1B stamping in order to be counted against the cap, changing employers may result in a denial as you are not counted against the cap, and you may not receive your H-1B visa stamp.
For those that need to get H-1B visa stamping in order to activate their H-1B, there are some timing considerations when it comes to doing so. Department of State guidance generally allows you to apply for your H-1B visa stamping only 90 days prior to your H-1B start date. Therefore, if your start date is October 1, you can apply for your H-1B visa stamp no earlier than July 3, assuming your H-1B is approved by then. Once you receive your H-1B visa stamp, you cannot immediately enter the US. You may not enter the US more than 10 days prior to your I-797 validity date. Therefore, if your H-1B shows a start date of October 1, you cannot enter until September 21. More FAQs about visa stamping and entry can be found here:
Transitioning to an H-1B is the next step in your employment immigration process. Be mindful of your H-1B validity dates and six year period, and if you are subject to the visa bulletin, mostly Indian and Chinese nationals, be sure you start your green card process well in advance of the 6 year limit.
Congratulations on your H-1B approval and taking the next step. If you have any questions about your future immigration journey, contact a qualified immigration attorney.
Steven Brown is a Partner at Reddy & Neumann, P.C. where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.