Question about H1B -> Layoff -> F1 -> H1B

[SergSerg]

Hello,

I got laid off while in H1B (issued 2013) and I have been out of status for over two months. I am planning to go back home very soon.

If I were to come back in a F1 visa (for masters degree), would I be able to apply for jobs while attending university, or would I need to graduate before I am able to do so?

Also, I read somewhere that since I already got a H1B, the annual cap would not apply to me if I applied in the future. Is that true?

Thank you

[raghvi]

Hello,

I got laid off while in H1B (issued 2013) and I have been out of status for over two months. I am planning to go back home very soon.

If I were to come back in a F1 visa (for masters degree), would I be able to apply for jobs while attending university, or would I need to graduate before I am able to do so?

Also, I read somewhere that since I already got a H1B, the annual cap would not apply to me if I applied in the future. Is that true?

Thank you

While on F1 you have to adhere to F1 status, F1 status is not same as H1 status, and I dont think the same jobs/pay scales/hourly limits etc apply to one another.

Yes you would be cap exempt for 6 Year from your last held H1 status.

This is my opinion not legal advice.

[SergSerg]

Thank you. If I applied for a job while on F1, would the employer be able to apply for the H1B without having to wait until April considering that the cap wouldn't affect me?

[raghvi]

Yes but then your employer would have to file a F1 to H1 Change Of status for you. Seeing a COS application from F1 to H1 within a few months of entering on F1 would not be pleasing to USCIS and they may not approve it or approve it as consular process plus it also shows that you never intended to complete the study in the first place.

Seeing this possibility your chances of F1 success appear slim.

This is my opinion not legal advice.