cap gap > B2 > F1

[Cecilia Araya]

My former employer filed an H1B visa for me (2013) and got accepted. However, I was laid off before the H1B was effective. I left the US and re entered later on in a tourist visa (B2) for a short period of time. Currently I'm living out of the states. I recently checked if my H1B petition was revoked in the USCIS website but apparently hasnt been revoked yet. I have the following questions:

- Can I look for a job in the US with a tourist visa? If I get a job where a new employer is willing to sponsor my visa, Am I going to be subject to the H1B annual cap again?
- I'm also considering the alternative of doing a full time master in the US, Will I have any issues if I apply for a F1 visa now considering that the USCIS website shows that my H1B hasnt been revoked yet?

I appreciate your help.

[Nattybone]

My former employer filed an H1B visa for me (2013) and got accepted. However, I was laid off before the H1B was effective. I left the US and re entered later on in a tourist visa (B2) for a short period of time. Currently I'm living out of the states. I recently checked if my H1B petition was revoked in the USCIS website but apparently hasnt been revoked yet. I have the following questions:

- Can I look for a job in the US with a tourist visa? If I get a job where a new employer is willing to sponsor my visa, Am I going to be subject to the H1B annual cap again?
- I'm also considering the alternative of doing a full time master in the US, Will I have any issues if I apply for a F1 visa now considering that the USCIS website shows that my H1B hasnt been revoked yet?

I appreciate your help.

Hello, Cecilia.

Very important: Revocation does not mean the visa is gone. It simple means that that particular employer does not sponsor it further. So, all you need is find another employer and have file sponsor the visa. You have been given an H1B and it is yours for 6 years. You need to find a new employer and make him file a fresh I797 for you.

You will NOT be subject to the cap as you already were subjected to it earlier in 2013.

You can look for a job on Tourist visa but it is not liked by the officer at the Port of Entry and by USCIS (So, upon entering USA if you say you are here to find a job, they might send you back from there).

But, upon entering USA, you could look for jobs and upon finding one file a Change of Status (COS) from B1/B2 to H1B.

No problem in regards to H1B, in trying for F1.

I hope this helps.

Wishing you luck.

Cheers,

[Cecilia Araya]

Thanks for your help!! I have one more question. Although my H1B was accepted since I was laid off before this was effective (i don't have the H1b stamp in my passport, just the initial documentation), what you just mentioned is still valid? Its very likely that I'll go back to school for my 2nd master, therefore I wont be able to access to the OPT benefit again. After completion of my 2nd master, can I just look for a job indicating that an H1B was already granted to me but sponsorship is still required?

Thanks again for your help.

Hello, Cecilia.

Very important: Revocation does not mean the visa is gone. It simple means that that particular employer does not sponsor it further. So, all you need is find another employer and have file sponsor the visa. You have been given an H1B and it is yours for 6 years. You need to find a new employer and make him file a fresh I797 for you.

You will NOT be subject to the cap as you already were subjected to it earlier in 2013.

You can look for a job on Tourist visa but it is not liked by the officer at the Port of Entry and by USCIS (So, upon entering USA if you say you are here to find a job, they might send you back from there).

But, upon entering USA, you could look for jobs and upon finding one file a Change of Status (COS) from B1/B2 to H1B.

No problem in regards to H1B, in trying for F1.

I hope this helps.

Wishing you luck.

Cheers,

[Nattybone]

Thanks for your help!! I have one more question. Although my H1B was accepted since I was laid off before this was effective (i don't have the H1b stamp in my passport, just the initial documentation), what you just mentioned is still valid? Its very likely that I'll go back to school for my 2nd master, therefore I wont be able to access to the OPT benefit again. After completion of my 2nd master, can I just look for a job indicating that an H1B was already granted to me but sponsorship is still required?

Thanks again for your help.

Hello, Cecilia.

Yes. You could use your H1B. The stamp on the Passport is meant for letting you enter USA on that particular visa. People who, upon entering USA, do a Change of Status (COS) do not get the stamp on their passport but they still get that particular status.

Visa is for entering the USA. Status is what you maintain inside the USA. E.g.: I could enter on a B2 visa and do a COS to Student (F1) visa. Now, my passport still carries B2 stamp which allowed me to enter USA, but now my status inside USA is F1 as i did a COS to F1 (for which i do not have a corresponding F1 stamp on my passport).

One note of caution: Please be careful with changing from B2 to F1 or H1. If you enter on B2 with the intent, please be careful with your I94 expiry date. Your I94 needs to be valid when you apply for F1 or H1 or any other visa. Timing will be important. Also, you do not have to mention your intent to do a Change Status at the Port of Entry.

Wishing you luck.

Cheers,