Professionals: H-1B Petition Procedures if Inside the United States – Changing Status

There are two steps involved in an H-1B petition if a person is physically in the United States. The first step is obtaining a certified Labor Condition Application (LCA). The second step is filing an H-1B petition with the USCIS to change status to H-1B status.

After securing the certified LCA, as discussed in greater detail elsewhere, a prospective H-1B employer files a Form I-129, H Supplement, H-1B Data Collection Sheet, all supporting evidence and the appropriate filing fees with the USCIS. An H-1B petition may be filed up to six months prior to the commencement date of the contemplated H-1B employment. If the prospective H-1B employee has a spouse and unmarried children under the age of 21-years old legally in the United States, a Form I-539 is filed to request a change of status to H-4.

Upon approval of the change of status application, the USCIS issues a Form I-797 Notice of Action Approval Notice. The bottom portion of the Approval Notice contains a new Form I-94 card showing the status has been changed to H-1B and the validity period of the new H-1B status, normally three years.

The issuance of a Form I-797 Approval Notice authorizing the change of status to H-1B status also authorizes the individual to commence employment with the employer in accordance with the validity period stated on the Form I-797. However, it does not enable a person to depart and freely re-enter the United States. Under these circumstances, the H-1B employee and H-4 family members are required to apply for an H-1B and H-4 visa at an overseas U.S. embassy or consulate.

Departure from the United States after Filing Change of Status

If a person files to change status to H-1B and departs the United States prior to approval of the change of status, the application to change status is deemed abandoned. However, this does not mean the H-1B petition will not be approved. After approval of the H-1B petition, the prospective H-1B employee must apply for an H-1B visa at an overseas U.S. embassy or consulate and re-enter the United States to commence employment.