The B-1/B-2 to H-1B change of status (COS) allows a foreign national already in the United States on a visitor visa to transition into H-1B specialty occupation status without leaving the country. The employer files Form I-129 with USCIS requesting COS instead of consular processing, and if approved, the beneficiary receives a new I-94 reflecting H-1B status. This pathway has become significantly more important in 2026 following the September 2025 Presidential Proclamation (Proclamation 10973, effective September 21, 2025) that imposed a $100,000 supplemental fee on new H-1B petitions requesting consular processing or port-of-entry admission, a fee that does not apply to change of status petitions filed from within the United States. This guide covers the COS process, current fees, the FY2027 weighted lottery system, critical timing risks, and practical considerations for employers and employees evaluating this route.
The full COS journey extends well beyond the USCIS adjudication window. It begins months before the H-1B registration period and continues through the October 1 employment start date for cap-subject petitions. The complete timeline from initial planning to H-1B employment authorization typically spans 7 to 12 months for cap-subject petitions, or 2 to 4 months for cap-exempt positions.
Before pursuing COS, both the employer and the prospective H-1B worker need to confirm that the beneficiary meets all eligibility requirements. This phase typically requires 1 to 3 months depending on documentation readiness, employer preparation, and whether the position is cap-subject or cap-exempt.
The January 2025 H-1B Modernization Rule (89 FR 103054, effective January 17, 2025) introduced several changes that directly affect COS eligibility. The revised Form I-129 (edition date 01/17/25) became mandatory immediately with no grace period. The rule replaced the "employer-employee relationship" standard with a "bona fide job offer" requirement, which now recognizes telework and remote work arrangements. USCIS also codified the deference policy under 8 CFR 214.1(c)(5), meaning adjudicators generally defer to prior USCIS approvals for the same parties and facts in extension cases.
Specialty occupation evidence: Documentation that the position requires a bachelor's degree or higher in a specific field and that the beneficiary's qualifications match. Strong evidence includes positions requiring specific technical knowledge obtainable only through a degree in a defined field, consistent industry practice requiring such a degree, duties so specialized and complex that they require degree-level knowledge, a history of the employer requiring a degree for the role, and a salary reflecting a specialty occupation level. Weaker evidence includes generic job descriptions applicable to multiple educational backgrounds, duties that do not clearly require specialized knowledge, job titles that do not match specialty occupation criteria, inconsistencies between the degree requirement and actual duties, and roles where the employer has previously hired non-degreed workers.
For cap-subject petitions, the employer must first register in the H-1B electronic registration system during the annual registration window. For FY2027, registration opens March 4, 2026 at noon ET and closes March 19, 2026 at noon ET, per USCIS guidance. The registration fee is $215 per beneficiary. Selection notifications are expected by March 31, 2026, with the filing window expected to open April 1, 2026 for at least 90 days.
Two major changes apply to FY2027 registrations. First, the weighted selection process takes effect February 27, 2026 (90 FR 60864, published December 29, 2025), replacing the purely random lottery. Registrations at Level IV wages (approximately the 67th percentile) receive four entries in the selection pool; Level III gets three; Level II gets two; Level I gets one. DHS projects selection rates of approximately 61% for Level IV, 46% for Level III, 31% for Level II, and 15% for Level I. Since approximately 83% of historical cap-subject H-1B petitions were filed at Levels I and II, most applicants face reduced odds unless employers increase the offered salary.
Second, the beneficiary-centric lottery (implemented for FY2025 and continuing) selects each unique beneficiary once regardless of how many employers register them, identified by passport number. For FY2026, approximately 336,153 unique beneficiaries were registered with 118,660 selected, yielding a 35.3% selection rate.
Alma's H-1B platform streamlines the entire process for employers and employees. Alma's immigration attorneys prepare and file petitions with a 2 week turnaround versus the 2 to 4 month industry average. The platform automates LCA preparation, document organization, and deadline tracking, while a dedicated attorney handles the legal strategy. Alma's attorneys maintain a 99%+ approval rate for qualified cases, with direct attorney communication and real-time case visibility through the client portal. For businesses managing multiple H-1B cases, Alma's enterprise platform provides centralized case tracking across the entire workforce.
After filing, the I-129 petition enters USCIS review. Historically, petitions have been routed to four service centers: California Service Center (WAC receipts), Vermont Service Center (EAC), Texas Service Center (SRC), and Nebraska Service Center (LIN). Filing location is determined by employer location and petition type. USCIS has been transitioning to unified Service Center Operations (SCOPS) reporting, as casework can now be routed across locations based on staffing and workload. Processing times are available through the USCIS Processing Times tool and reflect 80% completion over the past 6 months.
Regular processing: Approximately 2 to 6 months, though some cases extend to 8 months or more depending on complexity and volume. Timing is highly variable and can extend beyond posted times for cases that trigger security checks. The USCIS Processing Times tool provides current estimates.
Premium processing: 15 business days guaranteed response (approval, denial, RFE, or NOID) for $2,965 (effective March 1, 2026) in addition to base fees. If USCIS fails to respond within 15 business days, the premium processing fee is refunded. If an RFE is issued, a new 15-business-day period begins upon USCIS receipt of the RFE response.
For cap-subject petitions, even an approved COS does not authorize employment until October 1 of the relevant fiscal year. The beneficiary is not authorized to perform any work before that date, regardless of when the approval notice is issued.
The Department of State's 90-day rule (found in 9 FAM 302.9-4(B)(3)(g), replacing the former 30/60-day rule in September 2017) creates a presumption of willful misrepresentation if a nonimmigrant engages in conduct inconsistent with their visa status within 90 days of U.S. entry. For B-1/B-2 holders, filing a change of status application shortly after arrival can suggest that the visitor entered with the preconceived intent to seek H-1B status rather than for a genuine temporary visit.
This does not make COS from B-1/B-2 illegal. The Immigration and Nationality Act explicitly permits change of status from virtually any nonimmigrant category. The issue is timing and credibility.
An important nuance: The 90-day rule is DOS guidance for consular officers, not a binding USCIS regulation. USCIS removed the 90-day rule from its Policy Manual in 2021, meaning adjudicators are not required to apply it. However, USCIS officers may still consider similar timing concerns under a "totality of circumstances" analysis. Because B-1/B-2 is a single-intent visa (requiring the holder to demonstrate nonimmigrant intent and a binding foreign residence), scrutiny of preconceived intent remains a real risk regardless of the formal rule's status at USCIS.
Planning the U.S. entry on B-1/B-2 well before the March registration window is an important consideration. Entering in December or January provides sufficient time to register, get selected, and have the I-129 filed more than 90 days after entry.
The status gap is the single biggest practical obstacle for B-1/B-2 holders pursuing cap-subject H-1B status. A typical scenario illustrates the problem: a visitor enters the U.S. on B-1/B-2 in January 2026 and receives six months of authorized stay (I-94 expires July 2026). The employer registers for the FY2027 lottery in March 2026, the beneficiary is selected, and the employer files the H-1B petition in April through June 2026. But H-1B employment cannot begin until October 1, 2026, three months after B-1/B-2 status expires.
The employer (or the beneficiary directly) may file Form I-539 to extend B-1/B-2 status through at least October 1. This filing must occur before the current I-94 expires. The extension request and the employer's H-1B petition (with COS request) can be filed simultaneously. If the H-1B COS is approved, the B-1/B-2 extension becomes moot. If the H-1B is denied, the B-1/B-2 extension may still be approved, preserving lawful status.
A timely-filed, non-frivolous COS application creates an "authorized period of stay" even after the original B-1/B-2 I-94 expires. The beneficiary generally does not accrue unlawful presence while the petition is pending. However, this authorized period of stay is not the same as being "in status." If the COS is ultimately approved, the gap is treated as lawful. If denied, the person may be considered out of status retroactively from the I-94 expiration date.
The 240-day employment authorization extension does not apply. This rule (under 8 CFR 274a.12(b)(20)) covers only employment-based nonimmigrant categories (H, L, O, P, TN). B-1/B-2 holders have no work authorization to extend.
Cap-gap protections are available only to F-1 students (and their F-2 dependents). The F-1 cap-gap was expanded by the January 2025 Modernization Rule through April 1, but B-1/B-2 holders receive no equivalent benefit.
Travel abandons COS. If the beneficiary departs the United States while a change of status application is pending, USCIS treats the COS request as abandoned. This applies to any departure, including brief trips to Canada or Mexico. Advance parole does not prevent abandonment of a COS application (advance parole protects only pending I-485 adjustment of status applications, not COS requests). If travel becomes necessary, the petition may instead be filed requesting consular processing, though this triggers the $100,000 fee for new petitions filed after September 21, 2025.
Unauthorized employment is the highest-risk violation. Any unauthorized work on B-1/B-2 constitutes a status violation that can destroy COS eligibility, trigger inadmissibility under INA 212(a)(6)(C) for misrepresentation, and result in bars on future U.S. admission. The distinction between "permitted business activities" on B-1 and "employment" is sometimes narrow, making legal counsel essential for anyone evaluating this transition.
Denial consequences. If the H-1B petition with COS is denied, the beneficiary remains in B-1/B-2 status if still valid, or in the pending B-1/B-2 extension. If both have expired or been denied, the person is out of status. Many immigration attorneys note the option of a dual filing strategy: requesting COS as the primary option while designating a consular post as a backup. If COS fails but the underlying H-1B petition is approved, the beneficiary can depart and obtain an H-1B visa stamp at a consulate abroad.
The total cost of filing an H-1B petition varies significantly based on employer size, petition type, and whether the beneficiary undergoes consular processing or change of status. Following the April 2024 USCIS fee rule (the first comprehensive fee increase since 2016) and the September 2025 Presidential Proclamation, the current fee structure is as follows.
For a typical large employer filing a new cap-subject H-1B petition with change of status (no premium processing, not a covered employer under Pub. L. 114-113), the total government fees are approximately $3,545 to $3,595, depending on whether the petition is filed online or by paper. With premium processing (at the March 2026 rate), that rises to roughly $6,510 to $6,560. The employer is responsible for the ACWIA fee, fraud prevention fee, and base filing fee; these cannot be passed to the employee per DOL regulations.
For a full breakdown of H-1B costs including attorney fees, see Alma's pricing page.
This final rule (89 FR 103054, published December 18, 2024) revised the specialty occupation definition (clarifying that "normally" does not mean "always" for degree requirements), codified the deference policy for extensions and amendments under 8 CFR 214.1(c)(5), expanded cap-gap protection for F-1 students (and their F-2 dependents) through April 1, allowed beneficiary-owners with controlling interest to petition for H-1B (with 18-month validity limits), eliminated the itinerary requirement for workers at multiple worksites, and broadened cap-exempt eligibility for nonprofit research organizations by changing the standard from "primary mission" to "fundamental activity." The revised Form I-129 became mandatory immediately.
Published as a final rule in the Federal Register (90 FR 60864, December 29, 2025), this regulation layers wage-level weighting on top of the beneficiary-centric system. Level IV wages receive four lottery entries, Level III three, Level II two, and Level I one. DHS estimates $502 million in first-year wage increases as employers adjust compensation to improve selection odds. Given that 55% of historical cap-subject petitions fell at Level II and 28% at Level I, the practical effect is a significant redistribution of selection probability toward higher-paid positions.
Proclamation 10973 (signed September 19, 2025) requires a $100,000 payment for new H-1B petitions where the beneficiary requires consular processing or port-of-entry admission. It does not apply to change of status petitions, extensions, amendments, or renewals. Three federal lawsuits have challenged the fee: one (Chamber of Commerce v. DHS, D.D.C.) was upheld at the district level on December 23, 2025, and is now on appeal before the D.C. Circuit; two others remain pending in district courts (Global Nurse Force v. Trump, N.D. Cal.; California v. Noem, D. Mass.). The fee is set to expire September 21, 2026, absent presidential extension. For B-1/B-2 holders already in the U.S., this makes the COS pathway significantly more cost-effective than departing and processing through a consulate.
The first comprehensive USCIS fee increase since 2016 (89 FR 6386, effective April 1, 2024) raised the I-129 base fee to $780 for large employers, introduced the $600 Asylum Program Fee, increased the registration fee from $10 to $215, and changed premium processing from 15 calendar days to 15 business days (effectively adding about a week of processing time).
H-4 dependent status is available for the spouse and unmarried children under 21 of an H-1B holder. Dependents may file their own change of status applications concurrently with the principal beneficiary's H-1B petition, or they may apply for H-4 visas through consular processing abroad.
Together in the U.S.: The principal's I-129 (with COS) and each dependent's I-539 (requesting change to H-4 status) may be filed simultaneously for coordinated processing. All family members need to maintain valid B-1/B-2 status or have timely-filed extensions pending through the COS adjudication. The same no-travel restriction applies: any departure abandons the pending COS or change of status for that individual.
Split processing: The principal remains in the U.S. and files COS while dependents remain abroad and apply for H-4 visas at a consulate. This approach may be relevant when dependents entered under the Visa Waiver Program (which bars change of status) or when their B-1/B-2 status will expire before the principal's H-1B start date.
Typical timelines for dependents (as of early 2026): H-4 COS approval generally tracks the principal's H-1B timeline and is often adjudicated simultaneously if filed together. H-4 work authorization (EAD) is available only if the principal H-1B holder has an approved I-140 immigrant petition or has been granted H-1B status beyond the sixth year under AC21. The H-4 EAD typically processes in 3 to 9 months per USCIS data, with standalone filings potentially taking longer. H-4 dependents who change status in the U.S. will not have visa stamps in their passports; they need to obtain H-4 visa stamps at a consulate before any international travel and re-entry.
The H-4 EAD program has faced legal challenges and policy reversals. As of February 2026, the program remains in effect, but employers and H-4 holders may wish to monitor USCIS updates for any changes.
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No. B-1/B-2 status does not include employment authorization, and a pending H-1B petition does not grant work permission. Employment authorization begins only after both conditions are met: the H-1B petition is approved with change of status, and the employment start date (October 1 for cap-subject petitions) has arrived. Any unauthorized work while the COS is pending constitutes a status violation that can result in denial, inadmissibility, and bars on future U.S. admission. The 240-day employment authorization extension available to certain nonimmigrant workers (under 8 CFR 274a.12(b)(20)) does not apply to B-1/B-2 holders per USCIS regulations.
Any departure from the United States while a change of status application is pending causes USCIS to treat the COS request as abandoned. This applies to all departures, including brief trips to Canada or Mexico. Unlike pending I-485 adjustment of status applications, there is no advance parole option that preserves a pending COS. If travel is unavoidable, the employer may file the I-129 requesting consular processing instead of COS. New petitions requesting consular processing are subject to the $100,000 Presidential Proclamation fee (effective September 21, 2025).
No. The $100,000 supplemental fee applies only to new H-1B petitions where the beneficiary requires processing at a U.S. consulate or embassy abroad (consular processing or port-of-entry admission). It does not apply to change of status petitions for individuals already in valid status within the United States (provided the COS is granted and the beneficiary remains in the U.S. throughout adjudication), nor to H-1B extensions, amendments, or employer transfers. This distinction makes the COS pathway from B-1/B-2 substantially cheaper than consular processing for new H-1B petitions. The fee is subject to ongoing litigation and is currently set to expire September 21, 2026, absent presidential extension. For current guidance, consult an immigration attorney.
Generally no. Visitors who enter the United States under the Visa Waiver Program are admitted for a maximum of 90 days and are subject to significant restrictions on extending or changing their nonimmigrant status under 8 CFR 248.2(a)(5)–(6). VWP entrants who wish to obtain H-1B status typically pursue consular processing instead, where the employer files the I-129 with USCIS and, upon approval, the beneficiary attends a visa interview at a U.S. embassy or consulate abroad. This is an important distinction for employers recruiting workers who may have entered on ESTA rather than with a B-1/B-2 visa stamp.
The weighted lottery (effective February 27, 2026) changes selection odds based on the OEWS wage level of the offered position. Level IV wages receive four entries in the selection pool, Level III gets three, Level II gets two, and Level I gets one. For B-1/B-2 holders, this means that the offered salary directly impacts the likelihood of lottery selection. Employers offering higher wages relative to the occupation and geographic area will see improved odds. DHS projects selection rates of approximately 61% for Level IV and 15% for Level I.
