Would the COS still happen if I leave the country while the petition is pending?

[indika]

Hello there,

My company applied for H1B and I got picked up from the lottery. I somehow left the job in June and left the country leaving my H1B. I suppose my company did not withdraw my application. Anyways, the petition wasn't approved by the time I left. It got approved on August 18th and I returned to USA on the 20th on F1 visa.

My question is. would the COS still happen on October 1st? If it does, would it be valid since I violated a rule by leaving the states? If the COS doesn't happen on October 1st, would I be CAP-EXEMPT the next time I apply for H1B (Since it was approved)? Please advise.

Thank you very much!

[shervin143]

That depends on whether the H1B approval came with a new I-94 attached or not. You have to contact your previous employer to get that info. If it came with a new I-94, then your status will change to H1B as of Oct 1st and you should be working and getting paid. Alternatively, you can leave the country before Oct 1st and return back in F1 visa or you will need to file a COS from H1B to F1 again, for which you will need a copy of your H1B approval notice.

If your employer revokes the petition before Oct 1st, then you are not exempted from CAP anymore. If the employer doesn't revoke the petition before Oct 1st, then you can transfer it to another employer later and you are exempted from CAP. However, you will need a copy of the approval notice to be exempted from CAP.

[indika]

That depends on whether the H1B approval came with a new I-94 attached or not. You have to contact your previous employer to get that info. If it came with a new I-94, then your status will change to H1B as of Oct 1st and you should be working and getting paid. Alternatively, you can leave the country before Oct 1st and return back in F1 visa or you will need to file a COS from H1B to F1 again, for which you will need a copy of your H1B approval notice.

If your employer revokes the petition before Oct 1st, then you are not exempted from CAP anymore. If the employer doesn't revoke the petition before Oct 1st, then you can transfer it to another employer later and you are exempted from CAP. However, you will need a copy of the approval notice to be exempted from CAP.

Shervin, Thank you very much for the information. My other question is, now that the I94 is done electronically would I still get a new I94 along with the approval notice (paper notice?)?
Since I left the country while the case was pending, wouldn't it ALWAYS be considered as an abandonment of the COS and gets denied?
Say somehow the COS has not been denied, but in my case I entered the USA on 20th AUgust with a different F1, that means I have a new I94 than the previous I94 that my company used to file for H1B. Would the COS still happen?
What if the COS happens and I am still studying and not working, so obviously not getting paid? How much time do I have to file for a COS to F1 or in the other case -go work for my previous employer?

Any input would be appreciated. Thanks!

[shervin143]

My other question is, now that the I94 is done electronically would I still get a new I94 along with the approval notice (paper notice?)?
>>> Extensions, COS and Transfers will come with a new I-94 when applicable. Entry / exit records are online.

Since I left the country while the case was pending, wouldn't it ALWAYS be considered as an abandonment of the COS and gets denied?
>>> Technically YES.

Say somehow the COS has not been denied, but in my case I entered the USA on 20th AUgust with a different F1, that means I have a new I94 than the previous I94 that my company used to file for H1B. Would the COS still happen?
>>> It depends on how USCIS handled your case. Sometimes mistakes happen.

What if the COS happens and I am still studying and not working, so obviously not getting paid? How much time do I have to file for a COS to F1 or in the other case -go work for my previous employer?
>>> If it has happened and you are not working, then it complicates your situation. Your best option is to consult an immigration attorney who can handle the case with USCIS saying that H1B should have been denied at the first place. You being on F1 is not valid in such case.

[indika]

My other question is, now that the I94 is done electronically would I still get a new I94 along with the approval notice (paper notice?)?
>>> Extensions, COS and Transfers will come with a new I-94 when applicable. Entry / exit records are online.

Since I left the country while the case was pending, wouldn't it ALWAYS be considered as an abandonment of the COS and gets denied?
>>> Technically YES.

Say somehow the COS has not been denied, but in my case I entered the USA on 20th AUgust with a different F1, that means I have a new I94 than the previous I94 that my company used to file for H1B. Would the COS still happen?
>>> It depends on how USCIS handled your case. Sometimes mistakes happen.

What if the COS happens and I am still studying and not working, so obviously not getting paid? How much time do I have to file for a COS to F1 or in the other case -go work for my previous employer?
>>> If it has happened and you are not working, then it complicates your situation. Your best option is to consult an immigration attorney who can handle the case with USCIS saying that H1B should have been denied at the first place. You being on F1 is not valid in such case.

Thank you very much for the information, Shervin. I contacted my employer and she said my h1b is approved and I am now on h1B. She sent me the I797A form as well.. Let me rephrase my questions again.

I got my H1B approved on August 18, but I left the country while the case was pending and returned to the states on August 20(Technically the change of status shouldn't be approved since leaving the country is considered as an abandonment of the COS but it was still approved). I just looked up my I94 online and the expiration date in it has been changed to 09/30/2018 (3 years from October 1st). I contacted my employer and she said she sent a written withdrawal notice to USCIS after the case was approved. Also, she said I should be on H1B now. I checked the USCIS website and my case is still approved. Given this and the expiry date of my I94, I also believe I am on H1B right now.

I came back to the states on F1 visa and doing my Master's now.

1. When will my case be withdrawn as the written notice has been sent to the USCIS? (I thought this was an immediate process.)
2. If it gets withdrawn later, would I still be considered as CAP-EXEMPT the next time I apply for H1B?
3. If it does not get withdrawn later, would I still be considered as CAP-EXEMPT the next time I apply for H1B?
4. What am I supposed to do to keep my F1 status?
5. If I am supposed to file a COS from H1B to F1, when should I do it and would I still be able to work on campus as a graduate assistant?
6. What would be my best bet right now? (keep studying or finding a job?)
7. If I find another job can they do a H1B transfer before the withdrawal takes effect?

Thank you,
Indika

[MSam]

I have a related question: -
My kids are currently on L2 (my spouse has a L1). My H1 B extension got approved recently and I want to do a COS for my kids to H4. Once I start the H4 COS, is it ok for me to travel to India and get my visa stamped. Kids will be staying back in the US but I want to make sure that me (being the primary H1 holder) going out of country will not impact the COS processing of my kids.