Applying for a Change of Status to H-1B, Nonimmigrant Worker

$100.00

Who should buy this package?

There are a number of employment-based visas that allow foreign nationals to work in the United States, but one visa-type is by far the most popular: the H-1B. H-1B visas allow for a U.S. employer to sponsor a foreign national for employment for an initial period of three years. The reason that H-1Bs are so popular is that they are considerably easier to obtain than other types of work visas. If you have at least a Bachelor’s Degree or 12 years of work experience in a professional field and if a U.S. employer wants to employ you within your field, you can potentially qualify.

There is a significant drawback to the H-1B visa’s popularity, however: there are only so many visas to go around, and USCIS consistently runs out of H-1B visas within the first few days of each new fiscal year. This means that, in most cases, applicants for H-1B visas must file their applications on April 1 of any given year, and USCIS literally runs a lottery to determine which of these applications will be considered. The odds of getting selected are better than if you play the actual lottery, but they still aren’t great. For example, in Fiscal Year 2017, USCIS received 236,000 H-1B petitions, but only had 65,000 visas available (with an additional 20,000 available for individuals holding Master’s Degrees from U.S. institutions of higher learning). This means that the odds of a foreign national with a Bachelor’s Degree getting selected in the lottery was less than 28%.

Because of the lottery, working with an attorney on an H-1B petition is not always the best option. Attorneys will charge thousands of dollars to prepare an application that might not even get picked in the lottery. If an application does not get picked in the lottery, USCIS will simply send it back to you without looking at it. The work goes to waste, as does all of the money that you paid to an attorney!

You should be aware that, while the vast majority of H-1B petitions are subject to the lottery, there are a few exceptions to this general rule. First, H-1B petitions filed on behalf of foreign nationals seeking to work at a non-profit organization associated with a U.S. institution of higher learning are not subject to the cap (these are referred to as “non-cap” H-1B visas). Non-cap H-1B visas can be filed at any time. Second, foreign nationals are not subject to the lottery if they currently hold, or previously held, a cap subject H-1B, and they are seeking a new H-1B visa with a new employer.

This package is designed for individuals who are interested in applying for an H-1B, who feel that they can handle a moderately complicated immigration petition on their own, and who don’t want to pay for an attorney to prepare an application that USCIS might not even look at. It is also designed for individuals who qualify for one of the two exceptions to the H-1B lottery.

In sum, you should buy this package if you have found U.S. employers willing to sponsor you, you are currently in a valid immigration status, and you fit into one of the following three categories:

You are currently on OPT, you are seeking a cap-subject H-1B, and your OPT status runs through at least October 1 of the upcoming year;
You are seeking a non-cap subject H-1B (i.e. you are planning on working with a non-profit organization that is affiliated with an institution of higher learning); or
You have had a cap subject H-1B in the past, you are now seeking a new H-1B with a different employer, and you have not been in H-1B status for six years or more in the past.

Please note that even though cap-subject H-1Bs must be filed on April 1 of any given year, it is not possible to start working on that H-1B until October 1 of that year. This means that, if you are planning on remaining in the United States from the time that you file your petition through the start of your employment, your current visa status must remain valid through October 1 or you must obtain another visa status (for example, B1/B2 tourist visa status) in order to remain lawfully in the United States.

Please further note that if you are interested in filing for a cap subject H-1B, it is important to plan ahead! Filing an H-1B petition is a multi-step process, and it simply isn’t possible to complete a petition overnight. As a general rule, you will need at least 3-4 weeks in order to prepare a successful application. Consequently, you should not purchase this package if you are seeking H-1B status but the filing deadline is fast approaching.

This package is intended only for individuals who have “clean” criminal and U.S. immigration histories, and is intended for use only by individuals who have a lawful immigration status. You should not buy this package if you have a serious criminal history (including any convictions for drugs, no matter how minor) or you have committed violations of U.S. immigration law in the past. In either case, you might not be eligible for a change of status. In most cases, you are not eligible for a change of status if you hold J-1 or J-2 status and are subject to the two-year home residence requirement. If you have any reason to suspect that you might not be eligible for a change of status, you should consult with an experienced U.S. immigration attorney prior to filing your application.

What is in this package?

Overview of the process of applying for a change of status to H-1B, from start to finish.
Checklist of forms and evidence that you will need to submit with your application.
Step-by-step instructions for applying for a change of status to H-1B. The step-by step instructions will guide you through the process of collecting necessary evidence, filling out your paperwork, submitting a Labor Conditions Application (LCA) to the Department of Labor, submitting the application to USCIS, and everything in between.
Sample Cover Letter. You shouldn’t judge a book by its cover, but USCIS does sometimes judge immigration applications by their cover letters! Following this template will help to ensure that your application is not erroneously rejected in USCIS’s mailroom.
Example Letters of Support from Employers. A major component of any application for H-1B status is a statement from the employer explaining to USCIS why the company is interesting in hiring the foreign national and describing what the job conditions will be like. These examples are meant to give you a sense of the sort of information that USCIS needs to know, and to help you identify factors in your own case that might be significant.
Example “Certificate of Translation,” which you will need if your application will contain any document written in a language other than English.
Blank Immigration Forms, including the most common forms that are filed with an H-1B petition.
Frequently Asked Questions, answering some of the most common questions that applicants have when seeking to change status to H-1B.

How to use this package?

Follow the step-by-step instructions to complete, assemble, and file a successful application for a change of status to H-1B with USCIS. The package starts with an overview of the process, provides a checklist of the documents that you’ll need to submit with your application, and provides detailed instructions for how to complete each form. The package also contains instructions for preparing your application for mailing, and an explanation as to what happens after you file. Finally, the package contains crucial information about the rules and regulations associated with H-1Bs that you’ll need to be aware of both before filing and after the change of status has been approved. Following the instructions in this package can help you to put together the strongest application possible.

Special instructions

As mentioned above, it is generally necessary to file applications to change status to H-1B before the expiration of a person’s authorized stay, and you must remain in status up through the “start date for your H-1B. If you file a request to change your immigration status to H-1B after your authorized stay has already expired, or your immigration status will expire before you are allowed to start working on your H-1B, your application will likely be denied, and you may face serious immigration consequences. If your current authorized stay has already expired or if your status will expire before you can start working on an H-1B visa, you should consult with an experienced immigration attorney prior to filing.

You should be aware that, if you are granted an H-1B visa, USCIS will require your employer to pay you the “prevailing wage.” The U.S. government calculates the prevailing wage based on the job you are seeking, the amount of experience within your field that you possess, and the geographic location within the United States in which you are seeking to work. It is often the case that the prevailing wage is higher than what an employer considers to be “market rate” for the position. It is important to stress that there is no way to get around the prevailing wage requirement. If you are approved for an H-1B but your employer does not end up paying you the prevailing wage, you could experience serious immigration consequences.

Although it is sometimes possible for a person to obtain an H-1B visa if he or she does not have at least a Bachelor’s Degree, these types of applications are considerably more complicated. If you do not have a Bachelor’s Degree but are interested in an H-1B, you should consult with an experienced immigration attorney.

If your application to change status to H-1B is denied while you are inside the United States, and if this denial causes you to fall out of status, U.S. immigration officials will expect you to leave the country immediately. USCIS typically gives a 10-day grace period after a denial. You will accumulate unlawful presence if you remain in the United States after the grace period expires.

Finally, if you plan to self-sponsor a H-1B visa by incorporating a company, you should consult with an experienced immigration attorney since this type of case requires strategic planning and a clear understanding of U.S. immigration and corporate law.