Hello everyone,

I usually create posts based on questions I receive, and today’s topic is about applying for an H-1B visa from inside and outside the U.S. Many people ask about the process, timing, and potential risks, especially when they are currently on another visa, like a B-1/B-2 or F-1.

But before we dive into the specifics, let’s clarify an important distinction:

Immigrant vs. Non-Immigrant Visas & Dual Intent

U.S. visas are generally divided into two main categories:

Immigrant Visas – These lead to permanent residence (green card). Examples include family-based green card petitions, EB-1, EB-2 NIW, and EB-5 investor visas.

Non-Immigrant Visas – These are temporary and meant for specific purposes like tourism, study, or work. Examples include B-1/B-2 (tourism/business), F-1 (students), and H-1B (temporary workers).

💡 What is Dual Intent?

Most non-immigrant visas require applicants to prove they have no intention to stay permanently in the U.S. However, some visas—like H-1B and L-1—allow dual intent, meaning you can be on a temporary visa but still apply for a green card later without violating your status.

Now, let’s talk about how to apply for H-1B inside vs. outside the U.S.

Applying for H-1B From Outside the U.S. (Consular Processing)

If you are currently outside the U.S., your employer must go through the following steps:

H-1B Lottery Registration (if applicable) – If your employer is filing for a cap-subject H-1B (most private companies), they must register in the March H-1B lottery. If selected, they file the full petition in April.

Petition Approval (Form I-129) – If USCIS approves the employer’s petition, the next step is consular processing.

Visa Application & Consular Interview –

• You schedule an appointment at a U.S. embassy or consulate.
• You complete DS-160, pay the visa fee, and attend an interview.
• The officer determines whether to issue the visa.

Entry to the U.S. – Once the visa is issued, you can enter the U.S. up to 10 days before your employment start date.

✅ Pros of Applying from Outside the U.S.:
✔️ No need to change status within the U.S.
✔️ No risk of status violations.

🚨 Cons:
❌ Consular processing times vary (some embassies have long wait times).
❌ There’s a chance of administrative processing delays (221(g) security checks).

Applying for H-1B From Inside the U.S. (Change of Status – COS)

If you are already in the U.S. on a valid non-immigrant visa (e.g., F-1, OPT, B-1/B-2, TN, L-1), your employer can file for a change of status (COS) with USCIS instead of going through a consulate.

Steps for Change of Status (COS):

Employer files Form I-129 with COS request (indicating the new H-1B status).
If approved, your status automatically changes on the start date (usually October 1 for cap-subject cases).
You don’t need to leave the U.S. for stamping unless you travel.

✅ Pros of Change of Status (COS):
✔️ No need for a consular interview.
✔️ You can stay in the U.S. and continue working (if on F-1 OPT or other work authorization).

🚨 Cons:
❌ 90-day rule & Intent Issues – If you recently entered the U.S. on a B-1/B-2 or ESTA, applying for H-1B too soon may look like visa fraud. USCIS may question whether you misrepresented your intent when entering.
❌ Travel Restrictions – If you leave the U.S. after a COS approval, you must get an H-1B visa stamped before re-entering.

Key Differences: H-1B Consular Processing vs. Change of Status

Important Considerations When Switching from B-1/B-2 to H-1B

If someone entered the U.S. on a B-1/B-2 visa, they should not apply for a change of status too soon due to the 90-day rule. USCIS may assume they had immigrant intent when entering and deny the change of status.

🔹 Recommended: Leave the U.S. and apply through consular processing instead of filing for COS from B-1/B-2.

Final Thoughts

✔️ If you are outside the U.S., you must go through consular processing.
✔️ If you are inside the U.S., a change of status (COS) is possible, but watch out for visa intent issues.
✔️ If you entered on a B-1/B-2, avoid applying for H-1B COS too soon to prevent suspicion of fraud.

Understanding dual intent and the differences between non-immigrant and immigrant visas is crucial for a smooth application process. If you’re unsure about your case, consulting an immigration attorney can help you avoid costly mistakes!