H1B Visa: Consular Processing vs Change of Status


Question: F1 to H1B can be converted either by COS, where the Status will automatically change from F-1 to H1B On October 1st, if H1B is approved before 30th September. The second option is Consular processing which is once you go to home country while coming back you can go for H1B visa stamping and you will be converted to H1B thereafter. In second option you can use your STEM extension fully and once it is about to expire go to your home country and get H1B stamping done. Now if consular processing looks beneficial then my confusion is why people apply for COS (Change of status).

Why does someone prefer to stay on STEM OPT and not transfer to H-1B?

Maybe you want to save FICA taxes or perhaps thinking of getting more work permit. In both cases, I think the cons outweigh the pros.

Read How to get FICA Tax Refund for more details.

Who doesn’t want an additional 7% Income?

Some folks are not aware of this option as you can see from this thread below.

Here’s my suggestion:

If you have your H1B Visa, then I would strongly suggest changing to H1B. Don’t try to outsmart the system.

Do you want to save 7% on your taxes or end-up leaving the US because you can’t get H-1B in the future or end up spending few more thousands of dollars in Second Masters Degree?

Assuming, you did not convert to H-1B and you are holding on to H1B Visa Approval and stay on OPT or STEM OPT.

  • What if the employer terminates your job?
  • What if there’s no Premium Processing?
  • What if they Notify USCIS and perhaps withdraw your H-1B application?
  • What if a new law requiring minimum H-1B salary for new applicants is implemented?
  • What if you get 221(g) and get stuck during Stamping and Employer terminates your employment?

These are What-If questions and it will be really expensive when compared to FICA tax savings for a duration of maximum 36 months on STEM OPT.

Here’s a recent example from Ask An Attorney:

I ran into an issue with my H1 B. My H1 B is approved from an employer and starts from Oct 1st, 2018. But my employer terminated my employment on Sept 17th, 2018. Murthy Law firm said 60 day H1 grace period will not apply to my case and I have to leave the country before Oct 1st to avoid unlawful status.

You are not the first person to think about this and you won’t be the last person to think about staying in the STEM OPT with H-1B Approval. There’s a real possibility to get stuck in no man’s land.

To extending your employment beyond 6 years on H-1B Visa, your employer would have started the Green Card Process. I did a 2.5 hours Webinar on the same topic. Please check the Courses page for access.