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.)
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.