OPT and CoS to H1B

[gobu35]

Hi,

I am in a very tough situation. Any advice would be helpful.

I am on a F-1 (MBA) and got company A to file for my H1B under Master's quota on Apr 1 2009, which eventually got approved later that month. I have an OPT from July 09 to July 10 and my H1b is filed as CoS, which means I will loose my OPT starting Oct 1st. Now, I have a contract position from employer B and I would like to work for them for a year on my OPT.

A) Is it now possible to revoke company A's H1b petition so that CoS does not apply and my OPT remains intact. If so, how complicated is that and how long will the process take?

B) Any other way I can work for company B for a year on OPT?

Thanks for your help.

[txh1b]

A. Not possible. Don't even attempt it. Doing so will not restore your old OPT but make you illegal as you will hold no status if company withdraws the H1b.
B. No options but to work for the company that sponsored the H1b. If you have the approval copy of the H1b or at the least a receipt number, your new company B can process a H1b transfer for you and you could work on OPT till Oct and then on H1b.

[gobu35]

Thank you for your response!

Re: A) I actually talked to a immigration attorney and she said it is complicated but doable. The school would need to step in and would need to ask for a data fix which would re-instate my OPT. Do you think it's going to be a problem?

B) I do have the I-797, but can we do a transfer even though I havent worked for them for a single day.

Thanks a lot. Would appreciate your response.

A. Not possible. Don't even attempt it. Doing so will not restore your old OPT but make you illegal as you will hold no status if company withdraws the H1b.
B. No options but to work for the company that sponsored the H1b. If you have the approval copy of the H1b or at the least a receipt number, your new company B can process a H1b transfer for you and you could work on OPT till Oct and then on H1b.

[txh1b]

A. I can say that the immigration attorney that you spoke to is wrong. It is simply NOT possible at all without approval from the DSO and the SEVIS Service request. You can talk to your ISO and they will say the same. Once the Sevis SR reinstates your status back to F1, it could give you your F1 status back. Read the entire thread as there are updates.

B. You can transfer the petition NOW. You need not have worked for the employer at all. If you do it after Oct 1st, you need paystubs from the employer.

[gobu35]

Thank you again for your response!

I called up the SEVIS helpdesk no. and here's what they told me.

1. Ask the employer to revoke H1-B. This would cancel my H1-B but SEVIS would still have a lock.
2. Then ask the School DSO to call up SEVIS helpdesk and open a ticket on unlocking my F status. Once the ticket is issued, I am legally on F status.

I am now confused as you mentioned that it is not possible. Do you have the link to USCIS CFR or INA that you can point me to?
Additionally, can you also tell me how long does the H1B revocation process take (because I would need this to happen before Oct..)

Thanks again for your time.

A. I can say that the immigration attorney that you spoke to is wrong. It is simply NOT possible at all. You can talk to your ISO and they will say the same. You can go through the related CFR or INA on USCIS website.

B. You can transfer the petition NOW. You need not have worked for the employer at all. If you do it after Oct 1st, you need paystubs from the employer.

[txh1b]

Talk to your school DSO. They are more familiar with the laws around F1 students. They will not reinstate your F1 status as your H1b has been approved.

Revoking a H1b is fairly simple. Employer has to send a revoke letter to USCIS but it could take couple of months for them to act on it.

I will try to dig up the CFR/INA but I am extremely busy and will be a while. You can look up the sections on USCIS that talks about OPT and it is very clear there.

[gobu35]

I talked to them and they are ok with doing it. All they need is some kind of confirmation that my H1B is revoked or already in process. Also, talked to an immigration attorney and she recommended the same thing. Now, few more questions:

a) When the employer would file for revocation, would they get some sort of acknowledgment? Because if the revocation process takes long, then the school would need at least the acknowledgment to start the process?

b) Also, since I am asking my employer to revoke the petition without even joining them, I am spoiling terms with them. In light of that, would they cooperate with me in giving me documentation related to acknowledgment or final revocation notice. Are they lawfully required to do so?

Thanks a lot for your time. Really appreicate your timely responses. I have to decide this by EOD and hence the rush.

Talk to your school DSO. They are more familiar with the laws around F1 students. They will not reinstate your F1 status as your H1b has been approved.

Revoking a H1b is fairly simple. Employer has to send a revoke letter to USCIS but it could take couple of months for them to act on it.

I will try to dig up the CFR/INA but I am extremely busy and will be a while. You can look up the sections on USCIS that talks about OPT and it is very clear there.

[txh1b]

I sent you a PM with few other creative but risky options to reinstate F1. Read all the pages in the link. Evaluate the risks and discuss with your DSO.

H1b revocation is procedural and there are no forms to fill. Hence there is no formal receipt other than an update on your Case number in terms of LUD online case status. USCIS sometimes sends out a letter to the employer that this is done but due to the nature of it, could take anywhere between 2-6 months.

Also, ensure at all costs that you are not falling out of status doing this as it will come back and haunt you later on.

Good Luck!

[hobbes1978]

Hello-
I was just going through the thread and realized I was in the same situation 4 years ago- I had my OPT from May 2005 to May 2006 approved. In April 2005 my employer applied for my H1-B (non-quota) starting October 2005. It was approved. However, in September 2005, I changed jobs and moved to a different city. I had to then apply for a new H1-B (within the 20,000 Masters quota). My previous employer sent a letter to USCIS to revoke my approved H1-B. I applied for a new H1-B with a start date 6 months from then - Feb 2005 and got an approved H1-B with the requested start date. I did send a copy of the letter my previous employer wrote revoking the H1-B with this petition.
I worked on OPT From May 2005 to Feb 2005. In Dec 2005 I had to travel to India, so I contacted my ISO for the signature on the I-20 since I was leaving the US and entering back on my F-1 visa and they said my SEVIS record had been cancelled because of approved H1-B. However, since my H1-B start date was Feb 2005, they requested USCIS to reinstate my sevis record which was done and I traveled and renetered on F-1 without any problems. I also could not go for stamping and enter on my H1-B visa because rules state that you can enter with a stamped H1-B only 10 days before the start date on you H1. Mine was at the end of Feb and I was coming back in early Jan. SO I had to enter on my F-1 as I had to resume work after vacation.
I just made sure I had the proper documentation and paper trail all along and carry everything to this date. I have transfered/extended H1 since then and have not had any issues so far.
I hope this helps.

[gobu35]

hobbes1978,

this is very valuable information.
I have one question - Did you get any difficult getting the H1B revocation letter from the employer? In my case, it can get complicated since I am spoiling relation with my employer (resigning without even joining them). Do you think any issue with that?

Thanks for the information.
I am also going to send you a PM on this..

Hello-
I was just going through the thread and realized I was in the same situation 4 years ago- I had my OPT from May 2005 to May 2006 approved. In April 2005 my employer applied for my H1-B (non-quota) starting October 2005. It was approved. However, in September 2005, I changed jobs and moved to a different city. I had to then apply for a new H1-B (within the 20,000 Masters quota). My previous employer sent a letter to USCIS to revoke my approved H1-B. I applied for a new H1-B with a start date 6 months from then - Feb 2005 and got an approved H1-B with the requested start date. I did send a copy of the letter my previous employer wrote revoking the H1-B with this petition.
I worked on OPT From May 2005 to Feb 2005. In Dec 2005 I had to travel to India, so I contacted my ISO for the signature on the I-20 since I was leaving the US and entering back on my F-1 visa and they said my SEVIS record had been cancelled because of approved H1-B. However, since my H1-B start date was Feb 2005, they requested USCIS to reinstate my sevis record which was done and I traveled and renetered on F-1 without any problems. I also could not go for stamping and enter on my H1-B visa because rules state that you can enter with a stamped H1-B only 10 days before the start date on you H1. Mine was at the end of Feb and I was coming back in early Jan. SO I had to enter on my F-1 as I had to resume work after vacation.
I just made sure I had the proper documentation and paper trail all along and carry everything to this date. I have transfered/extended H1 since then and have not had any issues so far.
I hope this helps.

[imjimmy]

Thanks for this thread.

Gobu35: I am in the same situation as you are. I am on OPT with a H1B COS approved from Oct, but the employer revoked my offer. Do you know whether the employer has to definitely file for cancellation for the OPT to be reinstated. I say this because, I'm not sure whether my employer would revoke my H1 petition, as the company has been liquidated. Is there any way around this? Thanks!

txh1b : Thanks for the info. Could you plz also send me the information/links that you send to Gobu35 on some creative options to reinstate the F1.

[sfar]

txh1b: Thanks for this thread

Gobu35: I am in similar situation. I am on OPT and has an approved H1B with change of status. My employer is going to cancel the H1B. My OPT was till Feb '10, I don't want to loose it.

Please share you experience with everyone, what did you do?

Thank you

[yash353]

Same situation.. very urgent

I have previously worked for a desi consultancy on OPT and then they filed H1B for me My OPt is valid from Jan 27th 2009 to Jan 26th 2010. But i got H1b approved and my OPT is going to end on October 1st 2009. I have got a job recently full time with a very good company and on a good project. So i have started to work for them on OPT and asked the previous employer to cancel my H1B , as per my request he revoked my H1b. But my school is having problem on how to reinstate my OPT. can you suggest me how you have done it earlier. Please let me know all the possible ways to Update my SEVIS with school back to OPT from OCT 1st. It will be really helpful for me to end the tension i am going through at this momemt.I dont want to fall out of status and lose this job.

[txh1b]

Have them file for a H1b under premium processing.

[yash353]

Cant the OPT be reinstated as per gobu35??