Status after B2 expires when H1b has been approved but payroll not started

[mirage83]

New York State

Hi,
I came to the US on a visitors visa ( B2) which had an I-94 valid for 6 months. My I-94 status ends at the end of November. However an H1B application was filed on my behalf by a company and the
I-129 was approved in August - the EAC number given by the INS shows the status as approved - However I am still looking for projects and am not on the payroll of the company as yet and hence they have not handed over the I-797 or I-94 for the new visa...Can I stay legally in the country even though my I94 of previous visa expires because I-129 has been approved for new visa
Any help will be highly appreciated
mirage

[ImmigAttyLana]

Technically, yes, you can stay if the H-1B has been approved, but you would need to 1. have the I-94 that is attached to that approval, as that would be your only means of proving that you are in valid status in the US now once the B-2 I-94 expires and 2. if you are not placed on a project and not working and not getting paid, you are in violation of that H-1B status and will not be eligible for a transfer H-1B. You need to be on payroll once the H-1B becomes effective; otherwise both you and the employer are in violation of the immigration and the department of labor laws.

Please let me know if you have any additional questions or if I may be of further assistance in this matter.

[mirage83]

Hi Lana ,
Thank you so much for the prompt reply. I wish to know whether a change of status - from B2 to H1B - has to be filed for after the I-129 has been approved or is the process automatic i.e. have I been on h1b status since the time my I-129 was first approved and am no longer on B2 status?
Thanking you

[ImmigAttyLana]

It is done AT the time the I-129 is filed. It is done WITHIN the form itself. Either you ask for change of status OR you ask for consular processing. Without seeing what was submitted, I cannot say how your particular petition was submitted. You need to get a copy of the petition and the approval notice from the employer, as this is really something you should have in your records anyway.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.

[mirage83]

Hi Lana,
Thank you for the very quick reply again. Could you please elaborate on what consular processing means and do most of the cases file for direct change of status rather than consular processing for people who are already in the US?
Thanking you in anticipaton

[ImmigAttyLana]

I cannot say what most petitions request because it very much depends on the particular case and plans/objectives of both the employer and the beneficiary. Most of the time, if the person is already in the US and eligible for change of status, it is filed for a change of status since consular processing involves travel, extra costs and the uncertainty of being issued a visa. So, I would say that the change of status is definitely the preferred method.

Consular processing means that when the H-1B is approved, it does not have a I-94 attached to it and therefore it is really not a "live" approval. The beneficiary has to travel to the home country and apply for the H-1B visa at the US Consulate in their home country on the basis of the approved H-1B petition. After the consular officer reviews the petition and the visa application request (sometimes there is also an interview), the visa is either granted or denied. If granted, the beneficiary then can enter the US on that visa and start working for the employer that had sponsored the H-1B petition.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.

[mirage83]

Thank you so much!! You have been a great help