Simultaneous change of Status If You’re already in the U. S

If you’re already in the U. S. in lawful status, such as on a student or other tem­porary visa, the petition can be used to ask your status the immediately changed to H-1B worker. (Part 2, Question 5 of Form I-129 offers choices addressing this issue.) You can’t, however, take advan­tage of this option if you entered the U. S. on a visa waiver, or using a C (alien in transit), TWOV (alien in transit without a visa), D (crewman), K-1 (fiance), K-2 (dependent of a fiance), J-1 (exchange visitor), or M-1 (vocational student) visa. You must have:

• entered the u. s. legally

• never worked in u. s. illegally, and

• not passed the expiration date on your I-94 card.

There is another problem that comes up only in u. s. filings. It is the issue of what is called “preconceived intent.” To approve a change of status, usCIs must believe that at the time you originally entered the u. s. as a visitor or with some other nonimmigrant visa, you did not intend to apply for a different status. If usCIs thinks you had a preconceived plan to use one visa to enter the u. s. with an eye to applying for a different status after getting there, it may deny your application. (You can get around the preconceived intent issue by leaving the u. s. and applying for your H-1B visa at a u. s. consulate in another country.)

Your spouse and children, if they are also in the u. s. with you, can’t change their status by being mentioned on your Form I-129, but must submit separate Forms I-539. They can submit these either at the same time your employer submits Form I-129, or afterward. (If they submit them afterward, however, they will need to include either a copy of the usCis receipt notice indicating that your petition is pending, or a copy of the peti­tion approval notice.)

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Your eligibility to apply in the U. S.

has nothing to do with your overall eligibility for an H-1B visa. Many appli­cants who are barred from filing in the U. S., but otherwise qualify for H-1B status, may still apply successfully for an H-1B visa at a U. S. consulate in another country.

If you decide to apply for a change of status within the u. s., realize that you still don’t have the H-1B visa that you’ll need if you ever leave the u. s.—a change of status only gives you H-1B status. Visas are never given inside the united states. They are issued exclusively by u. s. consulates in other countries.

If you file in the u. s. and you are suc­cessful, you will get to remain in the u. s. with H-1B privileges until the status expires. But should you leave the coun­try for any reason before that time, you will have to apply for the visa itself at a u. s. consulate before returning to the united states. Moreover, the fact that your H-1B status has been approved in the u. s. does not guarantee that the con­sulate will also approve your visa. For these reasons, some people simply file through a consulate.

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