H1 -> F1 -> H1, With possibility of travel...

[rasharma]

Hi,

> I am currently in US on an H1 (with my Passport expiring towards end of 2010), with an IT Services company from INDIA

> My I-94 expires with my Passport (i.e.: towards end of 2010)

> My Visa expires by Mid of 2011

> I have got an admit into one of the top schools in US (towards a Masters degree); the program starts May' 2010

I am confused about the 2 options available (considering that I have about 5 Months to go) to obtain an F1:
a) Change of Status to F1
OR
b) Travel back home & get F1 stamped

QUESTIONS:
1. Which one is a better option?

2. I read somewhere that the Passport should be valid for the programs duration (the program ends May' 2011), in case I need to apply for a change of status... Is it true? Do I first need to get my Passport renewed?

3. What is a good time to apply for change of status?

4. After applying for change of status, when can I start attending my school & leave my current (Indian) employer?

5. In case I change my status from H1 to F1 & if I travel to INDIA in between the program, will I need to get an F1 stamped before re-entering the US?

6. In case I change my status from H1 to F1, will a future employer (probably in US) have problem filing a fresh H1B?

7. What happens if after changing status from H1 to F1, I again change my status from F1 to H1 (after my program completes); Is this allowed?

8. What kind of financial documents (fee support, pay stubs etc.), will be required towards the change of status (to F1) application OR fresh F1 stamping?

9. If I decide to get F1 stamped instead, will me holding an H1 affect the consulates decision to stamp a fresh F1?

10. If I get the F1 stamped from my home country, how does it affect a future employer applying for H1 (considering that I previously held an H1)?

Sincere thanks in advance...

[kabkaba]

Hi,

> I am currently in US on an H1 (with my Passport expiring towards end of 2010), with an IT Services company from INDIA

> My I-94 expires with my Passport (i.e.: towards end of 2010)

> My Visa expires by Mid of 2011

> I have got an admit into one of the top schools in US (towards a Masters degree); the program starts May' 2010

I am confused about the 2 options available (considering that I have about 5 Months to go) to obtain an F1:
a) Change of Status to F1
OR
b) Travel back home & get F1 stamped

QUESTIONS:
1. Which one is a better option?

Either is fine. COS can take up to 3 months.

2. I read somewhere that the Passport should be valid for the programs duration (the program ends May' 2011), in case I need to apply for a change of status... Is it true? Do I first need to get my Passport renewed?

Yes, renew your passport asap.

3. What is a good time to apply for change of status?

at least 3 months before beginning of classes.

4. After applying for change of status, when can I start attending my school & leave my current (Indian) employer?

If you are still working, you may start attending. If you leave the employer, you have to wait for COS to be approved.

5. In case I change my status from H1 to F1 & if I travel to INDIA in between the program, will I need to get an F1 stamped before re-entering the US?

Yes, you will need an F1 visa if you want to return in that status.

6. In case I change my status from H1 to F1, will a future employer (probably in US) have problem filing a fresh H1B?

No problem.

7. What happens if after changing status from H1 to F1, I again change my status from F1 to H1 (after my program completes); Is this allowed?

Yes, it can be done.

8. What kind of financial documents (fee support, pay stubs etc.), will be required towards the change of status (to F1) application OR fresh F1 stamping?

You need to show 1st years expenses in liquid funds (savings, checking/current or CD/FD accounts) and remaining years expenses in some form.

9. If I decide to get F1 stamped instead, will me holding an H1 affect the consulates decision to stamp a fresh F1?

No effect as such. In any case you will have to prove that you intend to return to your home country by social or financial ties.

10. If I get the F1 stamped from my home country, how does it affect a future employer applying for H1 (considering that I previously held an H1)?

No effect.

Sincere thanks in advance...

Answers above.

[rasharma]

Hi KabKaba,

Many thanks for the prompt response...

So, looking at the situation I am in... would you suggest a Change of Status to be a better option?

As I am working fulltime in the US and the Program is also fulltime.
When can I stop working (submit a resignation) and start attending the program fulltime... Is it after receiving an F1 status approval OR (as I have read at some forums) an acknowledgment will be sufficient to allow me start attending school?

I had also read somewhere, that if you do a change of status from H1 to F1, an employer (that hires you after your program concludes) can only get a fresh H1 stamped if you spend at least an year outside US first... Is this true?

Also, if I change my status from F1 to H1 (after the program) is it true that I will remain in that status only for the period that was remaining before I got my original H1 changed to F1 status... (i.e.: If I get into an F1 status from May' 10 and my H1 was expiring in say May' 2011, then after I convert from F1 to H1 back, I will have only an year left for my H1 status)...?

In this case:
1. (After the change from F1 to H1 expires -> 1 year), will I need to be outside US for an year as well, to get a fresh H1 stamped?
2. OR will it be better to get a fresh H1 stamped instead (if there is no requirement to be out of the country that is)?

[kabkaba]

If you apply for COS, until you receive approval and until the effective date of that approval you are in H1 status, so you have to maintain H1 status until that date. You may study in H1 status, but have to keep working full time.

Effective date of F1 status cannot be earlier than 30 days before start of classes. You have to clearly tell USCIS that you will maintain H1 status at least till this date, otherwise they will not approve your COS. If you cannot work till this date, leave the country whenever you stop working, get an F1 visa and return.

Your time spent in H1 status only is counted towards the 6 years limit.
If you spend 1 year outside the US, you may get a fresh 6 years.

[rasharma]

Hi KabKaba,

Thanks again...

But the issue here is, the program and my employer are in different cities (about 2500 miles apart).

I can keep on working till mid of Apr' 2010 & join the program in May' 2010... Will have to give my company a notice of 1 month though (i.e.: will need to resign by mid of mar' 2010).

So the question here is... If I apply for a change of status in end of Jan' 2010 (i.e.: by the time I received my revised letter of acceptance, as I had deferred my attendance by an year & my revised financial support from the University will be required towards showing the Financial backing available); will I still be able to begin attending fulltime in May' 10 even if an approval is not received but an acknowledgment is?

[kabkaba]

Last day of job (not the date you give notice) should be before F1 effective date.
If your university allows you to join in May and you are in F1 status before the first day of classes, then you can join. Get a new I-20 from the univ with appropriate starting date first. With this I-20 you can either apply for COS or leave the country and get an F1 visa. You have to have some status that allows you to study. Just COS receipt and job left leaves you with neither H1 nor F1 status, you are only allowed to stay in an intermediate status. The school's DSO will not allow you to register without seeing the COS approval.

If you really don't want to get into all these complications, leave the job, country and get an F1 visa.

[rasharma]

Hi again...

Hi,

I have some updates on my status now...

As suggested here, I did get my Passport renewed...

I spoke with the University's immigration team, and they said that you can start attending the program after applying for COS to F1, even if an approval is not received!!

They mentioned, that you will not be able to use your scholarship, get a campus job or a Drivers License until an approval is received...

Now, I am a bit confused as to how to proceed...

The immigration counselor at the University said, that we believe you should apply in last week of March, if you want to attend in May (classes begin 14th May)

Now once I receive my admit letter, then get an i20, pay the SEVIS fee, apply for COS...
1. How much time will it take to get a receipt, that my COS application was received by USCIS?

2. I am a consultant from an Indian IT-Services firm, so are the contracts signed in India valid here... like 3 Months min service, on return to India...?

3. Officially right now I am an employee of the American portion of my firm; so, is a 2 week notice valid OR will it have to be a 1 Month notice same as in India?

4. When should I resign? As soon I receive the COS Application receipt/acknowledgment?

5. Or can I simply apply for COS and give my employer a months notice in April beginning... since the University has said, that you can attend even after just applying for COS? Once I give notice, can my employer force me to leave US?

Any help will be appreciated...

Sincere thanks...

[kabkaba]

Hi,

I have some updates on my status now...

As suggested here, I did get my Passport renewed...

I spoke with the University's immigration team, and they said that you can start attending the program after applying for COS to F1, even if an approval is not received!!

They mentioned, that you will not be able to use your scholarship, get a campus job or a Drivers License until an approval is received...

Now, I am a bit confused as to how to proceed...

The immigration counselor at the University said, that we believe you should apply in last week of March, if you want to attend in May (classes begin 14th May)
They are saying that because they assume that you can study in H1 status but do not bother with the maintaining the status until COS approval part. If you apply for COS make sure you very clearly mention in your cover letter that you will maintain H1 status by working with the H1 employer at least 30 days before the start of classes as mentioned on the I-20.
Now once I receive my admit letter, then get an i20, pay the SEVIS fee, apply for COS...
1. How much time will it take to get a receipt, that my COS application was received by USCIS?
It should arrive in 1/2 weeks.
2. I am a consultant from an Indian IT-Services firm, so are the contracts signed in India valid here... like 3 Months min service, on return to India...?
This is a different matter. I would serve the 1 month notice period.
3. Officially right now I am an employee of the American portion of my firm; so, is a 2 week notice valid OR will it have to be a 1 Month notice same as in India?

4. When should I resign? As soon I receive the COS Application receipt/acknowledgment?
After receipt
5. Or can I simply apply for COS and give my employer a months notice in April beginning... since the University has said, that you can attend even after just applying for COS? Once I give notice, can my employer force me to leave US?
No they cannot since your COS application allows you to stay in the US.
Any help will be appreciated...

Sincere thanks...

Answers above.

[rasharma]

Hi Kabkaba,

Can you please clarify:
"They are saying that because they assume that you can study in H1 status but do not bother with the maintaining the status until COS approval part"

The only option I have is to go for a COS now, as going back to India I will have to work with my employer for 3 months (in India, as per the agreement signed back home)... Which is currently not feasible, as the program stats in May & going back will at least take a month.

You have alos mentioned, that I give a months notice after I recieve a confirmation that my COS application was received by USCIS... How does that work, do they send you a receipt or a document, which works as a legal intermediate status proof?

Considering that the Program starts on May' 14 (orientation, classes begin May' 17), I would require about 1 week to move from 1 state in US to another and also have to provide a months notice after acknowledgment receipt; by what date would you suggest I should file for a COS... last week of Mar?

I am asking this, as it would be great if the notice period doesn't overlap with the COS approval.... i.e.: what happens if final F1 status approval is received within the notice period that I had provided to the employer?

Sincere thanks...

[reply2durgesh]

Hi rasharma and Kabkaba and others,
My visa also expires in May 2011 and I am planning to go for Master's program starting just before my h1b expires.
1)can I get f1 within usa? do I need to go out of USA to stamp f1 visa?
2)do I need to be outside of usa for 1 yr after my opt expires in order to get fresh h1b? assumption is, i get my f1 visa->complete master's->get opt.
3)Mr rasharma,you will have 1 yr left in h1b after your master's program. would that help you be in usa for more than 1 yr?
please answer.
thanks,
durgesh

[rasharma]

Need immediate help (wrong start dates on approved H1)

Hi,

I will be grateful, if someone can advice me with possible options.

- I have an OPT, that expires on 12th June' 2012

- I had gotten my F1 via a COS (from H1)

- My new employer applied to re-instate the old H1 (via a COS from F1 to H1 under a cap-exempt category), which was expected to start on 13th June' 2012 (right next day my OPT was expiring) .

- This H1 got approved, but due to a USCIS mistake the H1 validity start date was listed for 2013 (i.e.: 13th June 2013 instead of 13th June' 2012)

- When the attorneys realized this, they filed for correction and re-issue of approval notice (via an I-824) indicating the urgency of the matter (as my OPT expires in 30 days).

- I have read that the I-824 form takes upto 3 months to get approved.

- I can go the STEM route and can receive a receipt from USCIS of the STEM application.

QUESTIONS:
1. I only have 30 days left on my OPT and I-824 will take about 90 days to get approved. What is the best course for me (as I am concerned about being out of status, till I-824 results comes out)?

2. Can USCIS deny the I-824 (for correcting dates on an already approved H1)?

3. Will my approved H1 cause my STEM request to be rejected by USCIS?

4. What else can I do to avoid going out of status?

Any advice will be helpful...

[kabkaba]

Don't worry about it. Since this was clearly a USCIS mistake, it will not affect you a whole lot. You can continue working.

[rasharma]

Need RE: immediate help (wrong start dates on approved H1)

Thanks kabkaba,

I am a bit worried because every time I ask the "Out Of Status" question to the company attorneys, they kind of evade a question without answering it properly. This sometimes makes me think, that the error happened from their side (as it is when I inquired about the mistake, the attorneys said that we did not want you to worry you hence we did not tell you about the incorrect dates) and they are trying to put it onto USCIS.

They have even gone ahead and suggested to file a STEM application (for peace of mind). But wouldn't it get rejected because an H1 was already approved for the same company?

[shrikulk]

Thanks kabkaba,

I am a bit worried because every time I ask the "Out Of Status" question to the company attorneys, they kind of evade a question without answering it properly. This sometimes makes me think, that the error happened from their side (as it is when I inquired about the mistake, the attorneys said that we did not want you to worry you hence we did not tell you about the incorrect dates) and they are trying to put it onto USCIS.

They have even gone ahead and suggested to file a STEM application (for peace of mind). But wouldn't it get rejected because an H1 was already approved for the same company?

Hi, I am exactly going through similar situation. My H1 was applied with not subject to Cap after OPT and H1 was approved with a dt = OPT end date + 40 days. Can you please let me know what happened to your case. Can you please help!! Thanks.

[usachdev]

If you apply for COS, until you receive approval and until the effective date of that approval you are in H1 status, so you have to maintain H1 status until that date. You may study in H1 status, but have to keep working full time.

Effective date of F1 status cannot be earlier than 30 days before start of classes. You have to clearly tell USCIS that you will maintain H1 status at least till this date, otherwise they will not approve your COS. If you cannot work till this date, leave the country whenever you stop working, get an F1 visa and return.

Your time spent in H1 status only is counted towards the 6 years limit.
If you spend 1 year outside the US, you may get a fresh 6 years.

Hi Kabkaba

If I change my status from H1B to F1, will I be able to capture time I spent on F1 when I switch back to H1B again?