Q: Is it mandatory to travel to India from USA for H1B visa stamping when a person is not in USA during I129 filing.
My spouse travelled to USA from India in 2022. I applied for H1B lottery in 2023, my application got picked up in lottery. My Employer had filed the H1B petition in June 2023. I travelled to USA as dependent on H4 in August 2023. In Jan 2024, my H1B petition got approved. Now I am willing to work in USA, so should I go back to India, go to US consulate for Interview and get the stamping done. (or) Can I apply for Change of status (H4 to H1B) here itself ( I mean from USA itself, without travelling to India)
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A:
Based on the information provided, it seems that you are currently in the United States on an H-4 visa, and your H-1B petition was approved in January 2024. In this situation, you have two options:
1. Change of Status (COS) within the United States: You can file Form I-539 to request a change of status from H-4 to H-1B without leaving the country. If your COS is approved, you can start working for your H-1B employer on the approved start date. However, keep in mind that if you later travel outside the U.S., you will need to visit a U.S. consulate or embassy abroad to obtain an H-1B visa stamp before reentering the country.
2. Consular Processing: You can choose to travel back to India and go through consular processing to obtain your H-1B visa stamp at a U.S. consulate or embassy. After receiving your visa stamp, you can reenter the United States and start working for your H-1B employer.
It is not mandatory to travel to India for H-1B visa stamping if you are already in the United States when your H-1B petition is approved. The COS option allows you to begin working without leaving the country. However, the choice between COS and consular processing depends on your personal circumstances and travel plans.
It is advisable to consult with your employer and an experienced immigration attorney to determine the best course of action for your specific case.
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