Introduction
A Change of Status (COS) in the United States is one of the most frequently misunderstood procedures within the non-immigrant visa framework. Many applicants, employers, and HR teams mistakenly believe that once a COS petition is filed, the beneficiary may begin employment in the new status. This misunderstanding can result in unauthorized employment, violations of immigration law, denial of future visa applications, and complications during green card processing. The objective of this article is to provide a detailed, legally sound explanation of COS rules, emphasizing when employment is permitted, common pitfalls, and Immigration Fleet’s professional guidance to ensure full compliance.
What Is a Change of Status?
A. Definition
A Change of Status refers to a request submitted to the United States Citizenship and Immigration Services (USCIS) asking permission to transition from one non-immigrant status to another without leaving the country. The applicant must be in valid lawful status at the time the COS request is filed.
B. Common COS Categories
Examples of COS filings include:
- B-2 Visitor → H-1B Specialty Occupation
- F-1 Student → H-1B (Cap or Non-Cap)
- H-4 Dependent → H-1B
- L-2 Spouse → H-1B
- Any non-immigrant status → F-1 Student
- H-1B → L-1 or L-1 → H-1B
Each of these filings requires USCIS approval before any employment under the new status may begin.
Critical Legal Principle: Employment Begins ONLY After USCIS Approves the COS
A. The Governing Rule
The most fundamental rule governing Change of Status filings is the following:
A person may not begin working in the new visa category until USCIS has formally approved the Change of Status request and issued an I-797A approval notice with an I-94 attached.
This means that simply receiving a receipt notice (I-797C) is not sufficient to authorize employment.
B. Categories Requiring Approval Before Work
The following transitions always require approval before any employment may begin:
- B-2 → H-1B
- H-4 → H-1B
- F-1 → H-1B (before OPT)
- L-2 → H-1B
- Any non-work status → Work status
- Any dependent status → Principal status
In these cases, the beneficiary has zero work authorization until USCIS approves the COS request.
The H-1B Portability Exception: Why It Does NOT Apply to COS Cases
A. What Is H-1B Portability?
Under the American Competitiveness in the Twenty-First Century Act (AC21), an individual who already holds valid H-1B status may begin work with a new employer as soon as the new H-1B petition is filed.
B. Portability Applies ONLY if the Beneficiary Is in Valid H-1B Status
Portability does NOT apply in the following circumstances:
- B-2 → H-1B
- H-4 → H-1B
- L-2 → H-1B
- F-1 → H-1B (without OPT or after OPT expires)
- Any COS case where the applicant is not already in H-1B status
Many people misunderstand this and begin working early, leading to major immigration consequences.
Legal Consequences of Working Before COS Approval
Working before USCIS approves a Change of Status is considered unauthorized employment and carries severe penalties.
A. Status Violation
Any unauthorized employment constitutes a violation of the Immigration and Nationality Act (INA). Such violations compromise the beneficiary’s ability to stay or adjust status in the U.S.
B. Accrual of Unlawful Presence
If a COS request is denied after unauthorized employment, unlawful presence may be counted retroactively, creating:
- Bars to re-entry (3-year or 10-year bar)
- Ineligibility for future COS or extensions
C. Impact on Future Visa Applications
Unauthorized employment often leads to:
- Visa denials at U.S. consulates
- 221(g) refusals
- Scrutiny during future H-1B/L-1 interviews
- Delays or outright denials for non-immigrant petitions
D. Green Card (Adjustment of Status) Difficulties
Unauthorized employment can create bars under INA §245(c), making adjustment of status in the U.S. more complicated unless specific exemptions apply.
E. Employer Liability
Employers permitting unauthorized work risk:
- I-9 violations
- Civil penalties
- Liquidated damages
- Loss of good standing with USCIS
Immigration Fleet Analysis and Observations
A. Frequent Misunderstanding of COS Rules
Many beneficiaries mistakenly believe that submitting the application allows immediate work. This misunderstanding is one of the leading causes of status violations.
B. Incorrect Advice from Consultants
Immigration Fleet has handled numerous cases where individuals received incorrect guidance such as:
- “Once you file, you can start work.”
This is completely incorrect for COS cases.
C. Increased USCIS Scrutiny
Since 2023–2024, USCIS has significantly tightened enforcement. Unauthorized employment now triggers:
- More RFEs
- Requests for pay records
- NOIDs
- Denials
D. Zero Tolerance at Consulates
U.S. consulates verify employment history through:
- DS-160 forms
- Social media
- Background databases
- Employer records
Immigration Fleet Recommendations
To ensure compliance and protect the beneficiary’s long-term immigration future, Immigration Fleet recommends the following:
A. Never Begin Work Until Approval
Employment must not begin until USCIS issues an I-797A with an I-94 reflecting the new status.
B. Use Premium Processing Whenever Feasible
Premium processing significantly reduces waiting time and the risk of status gaps or unauthorized work.
C. Maintain Continuous Legal Status
Where status expiry is near, file:
- B-2 extensions
- H-4 extensions
- F-1 reinstatements
- Bridge petitions
to preserve lawful presence.
D. Full Documentation Preservation
Keep records of:
- Filing receipts
- FedEx/UPS delivery confirmations
- Status maintenance documents
- Pay records once employment begins
E. If Unauthorized Employment Occurred
This situation must be handled strategically. Often:
- A legally crafted explanation is required
- The issue must be disclosed carefully
- A specialized attorney may need to intervene
Immigration Fleet prepares detailed defenses to minimize consequences.
Conclusion
The Change of Status process is a legally sensitive pathway that must be handled with precision and strict compliance. The central rule remains unchanged:
Employment may begin only after USCIS approves the Change of Status request and issues an I-797A approval notice with a valid I-94. Filing alone does NOT authorize employment.
Misunderstandings or shortcuts can lead to unauthorized employment, unlawful presence, visa denials, and long-term immigration complications.
