Legal Question in Immigration Law in California

Re: Can I change my status

Too late, you can't change your status to H-1B now while staying in the US. It should have been filed before you became out-of-status. There is an exception for late filing when the delay was due to "extraordinary circumstances" beyond your control. However, being 9 months out-of-status, it's extremely unlikely the INS will find the delay was due to something beyond your control.

So, you'll have to go back home to get the H-1B visa.

Liem Doan, Esq.

Re: Can I change my status

Hi-

Please be mindful of the "unlawful presence" issue in your situation. Those who stay more than 180 days beyond the expiration of their authorization to stay in the U.S., but less than 1 year, and who leave the U.S., are INADMISSIBLE for 3 years from the date of their departure from the U.S., and would need a waiver of inadmissibility to return, even if they have a nonimmigrant visa approved.

Ways are available to seek to avoid the unlawful presence bar prior to your departure, however, even in your type of situation. Otherwise, leaving to obtain a H1B visa under your circumstances before proper resolution would appear to make you inadmissible for 3 years even with an H1B visa.