What shd I do after H1B/I94 expiry,before I am able to find new employer to transfer?

[pravm]

Facts:
- H1B expiring Sep 30, 2015
- I94 expiring Oct 10, 2015
- Employer told me they will not renew
- I have 23 days left
- I started actively interviewing， had a few phone screens
- I doubt any offer will come through so soon
- A more realistic timeline for transfer is Nov/Dec 2015.

Question 1:
--> Should I overstay until I get the next job to transfer my visa or I must leave immediately when I94 expires?

Question 2:
--> Since I have existing B1/2 visa good for another 7 years, can I go over to Mexico and come back few days later under B1/2 to continue my interviews? When I get a job offer, I will then do a change of status back to H1B. What's the pros and cons?

Thank you so very much for all your help. Thank you!

[shervin143]

Question 1:
--> Should I overstay until I get the next job to transfer my visa or I must leave immediately when I94 expires?
>>> You should leave immediately before your I-94 expiry date. Transfer is not possible when you stay illegally. You will face issues with future visa stamping, petitions and GC process.

Question 2:
--> Since I have existing B1/2 visa good for another 7 years, can I go over to Mexico and come back few days later under B1/2 to continue my interviews? When I get a job offer, I will then do a change of status back to H1B. What's the pros and cons?
>>> It is illegal to travel to U.S in B1/B2 in search of jobs. Filing a COS from B1/B2 to H1B is very risky and you may get questioned about your motive to travel to U.S in B1/B2 by USCIS through an RFE (while filing H1B) or while attending a visa interview. It is never advisable.

[pravm]

Question 1:
--> Should I overstay until I get the next job to transfer my visa or I must leave immediately when I94 expires?
>>> You should leave immediately before your I-94 expiry date. Transfer is not possible when you stay illegally. You will face issues with future visa stamping, petitions and GC process.

Question 2:
--> Since I have existing B1/2 visa good for another 7 years, can I go over to Mexico and come back few days later under B1/2 to continue my interviews? When I get a job offer, I will then do a change of status back to H1B. What's the pros and cons?
>>> It is illegal to travel to U.S in B1/B2 in search of jobs. Filing a COS from B1/B2 to H1B is very risky and you may get questioned about your motive to travel to U.S in B1/B2 by USCIS through an RFE (while filing H1B) or while attending a visa interview. It is never advisable.

Thanks so much for your advice, Shervin143.

Just to confirm, if I choose to remain in USA from Oct 1 to 9, it is considered legal stay. Is that correct? (My H1B expires on Sep 30; I-94 expires on Oct 10.)

My plan is to cross the border to Tijuana on Oct 9 and come back the next day under B1/B2 to visit friends. I wonder if the chances of getting denied entry at the border is high (as in >50%)?

Then, as soon as I get a job offer, I will fly back home and ask the company to do a consular processing for H1B transfer - will that eliminate or at least mitigate to a large extent the B1/B2-->H1B COS risk you mentioned?

Thank you!

[shervin143]

Just to confirm, if I choose to remain in USA from Oct 1 to 9, it is considered legal stay. Is that correct? (My H1B expires on Sep 30; I-94 expires on Oct 10.)
>>> Yes. Any time spend in U.S after the current I-94 expiry date (without a pending extension, COS or transfer filed before the I-94 expiry date) is considered as illegal stay.

My plan is to cross the border to Tijuana on Oct 9 and come back the next day under B1/B2 to visit friends. I wonder if the chances of getting denied entry at the border is high (as in >50%)?
>>> Hard to predict. You might get questioned about your intention to travel back in B1/B2 and they can deny it if they think that your intention is not tourism.

Then, as soon as I get a job offer, I will fly back home and ask the company to do a consular processing for H1B transfer - will that eliminate or at least mitigate to a large extent the B1/B2-->H1B COS risk you mentioned?
>>> That can work. As long as you do not file a COS from B1/B2 to H1B, I guess you are good. Filing H1B for consular process will have no impact.

[pravm]

Just to confirm, if I choose to remain in USA from Oct 1 to 9, it is considered legal stay. Is that correct? (My H1B expires on Sep 30; I-94 expires on Oct 10.)
>>> Yes. Any time spend in U.S after the current I-94 expiry date (without a pending extension, COS or transfer filed before the I-94 expiry date) is considered as illegal stay.
----> Thank you for the clarification.


My plan is to cross the border to Tijuana on Oct 9 and come back the next day under B1/B2 to visit friends. I wonder if the chances of getting denied entry at the border is high (as in >50%)?
>>> Hard to predict. You might get questioned about your intention to travel back in B1/B2 and they can deny it if they think that your intention is not tourism.
----> Would a COS from H1B to B2 be a superior and much lower risk option? How long will COS from H1B-->B2 typically take?

Then, as soon as I get a job offer, I will fly back home and ask the company to do a consular processing for H1B transfer - will that eliminate or at least mitigate to a large extent the B1/B2-->H1B COS risk you mentioned?
>>> That can work. As long as you do not file a COS from B1/B2 to H1B, I guess you are good. Filing H1B for consular process will have no impact.
----> Ok. If the new employer needs me to start asap but COS from B2-->H1B and gets denied, is it too late to now ask for consular processing? Will it impact the chances of it getting approved?

Thanks so much!

[shervin143]

----> Would a COS from H1B to B2 be a superior and much lower risk option? How long will COS from H1B-->B2 typically take?
>>> Chances of a successful COS from H1B to B1/B2 is also very low. It takes about 2-5 months to get a decision on that COS. If you stay during that time and if the COS gets denied, then you will be in problem as you might have accumulated illegal stay.

Ok. If the new employer needs me to start asap but COS from B2-->H1B and gets denied, is it too late to now ask for consular processing? Will it impact the chances of it getting approved?
>>> Well, if the COS gets denied, then the employer can refile for consular process.

[pravm]

----> Would a COS from H1B to B2 be a superior and much lower risk option? How long will COS from H1B-->B2 typically take?
>>> Chances of a successful COS from H1B to B1/B2 is also very low. It takes about 2-5 months to get a decision on that COS. If you stay during that time and if the COS gets denied, then you will be in problem as you might have accumulated illegal stay.
-----> Ok thanks, got it. Assuming 1 month down the road, COS from H1B to B1/B2 is in process. I found a new employer and they want me onboard asap. My H1B is already expired so I believe I can't do transfer and employer has to file a CAP Exempt H1B petition? The key question is, will I be stuck because there's a pending COS? What is the best way then, for me to start working asap?

Ok. If the new employer needs me to start asap but COS from B2-->H1B and gets denied, is it too late to now ask for consular processing? Will it impact the chances of it getting approved?
>>> Well, if the COS gets denied, then the employer can refile for consular process.
-----> Ok thanks. Will the denied COS from B2-->H1B adversely affect the outcome of subsequent consular processing?

[shervin143]

Ok thanks, got it. Assuming 1 month down the road, COS from H1B to B1/B2 is in process. I found a new employer and they want me onboard asap. My H1B is already expired so I believe I can't do transfer and employer has to file a CAP Exempt H1B petition? The key question is, will I be stuck because there's a pending COS? What is the best way then, for me to start working asap?
>>> There is no way you can start working asap. If you find a employer, then you will have to file a COS from B1/B2 to H1B. That will be treated as a bridge petition. Meaning, unless the initial COS from H1B to B1/B2 gets approved, your second COS based on the pending B1/B2 to H1B will not get approved. Your changes of both these happening is very slim. Alternatively, you can leave the country and return back in H1B visa to begin working. But if you leave while the COS from H1B to B1/B is pending, then that COS will get denied and the time that you spent in U.S post your last I-94 expiry date will be considered to be illegal stay. You will need to mention that in all your future visa applications going forward.

Ok thanks. Will the denied COS from B2-->H1B adversely affect the outcome of subsequent consular processing?
>>> Nope. H1B petition for consular process might get approved by USCIS. But you may face issues at the consulate when you go for visa stamping since you would have accumulated illegal stay because of the denial.

[pravm]

>>> There is no way you can start working asap. If you find a employer, then you will have to file a COS from B1/B2 to H1B. That will be treated as a bridge petition. Meaning, unless the initial COS from H1B to B1/B2 gets approved, your second COS based on the pending B1/B2 to H1B will not get approved. Your changes of both these happening is very slim. Alternatively, you can leave the country and return back in H1B visa to begin working. But if you leave while the COS from H1B to B1/B is pending, then that COS will get denied and the time that you spent in U.S post your last I-94 expiry date will be considered to be illegal stay. You will need to mention that in all your future visa applications going forward.
-----> Thanks for your advice shervin143. So there is no way to cancel the first COS from H1B to B1/B2, once started?
Sounds like a better bet is to leave the country before I-94 expires and come back as a B2 visitor if I wish to spend the next 1 or 2 more months in USA. I'm trying to guess what is a reasonable number of days between my departure (after H1B ends) and arrival (under B2) that would be more favorable for smooth admission to USA under B2. Will 30 days be long enough?


Ok thanks. Will the denied COS from B2-->H1B adversely affect the outcome of subsequent consular processing?
>>> Nope. H1B petition for consular process might get approved by USCIS. But you may face issues at the consulate when you go for visa stamping since you would have accumulated illegal stay because of the denial.
-----> Ok. COS from H1B to B2 sounds like a double whammy process - not only I have to pay and wait; if they reject it, I'll be illegal alien for the waiting period