A Question on Remainder Option

[DMX17]

This question came to me in an e-mail.

This person, on F1 status with OPT ending Sept 2008, applied for an H1. The H1 was approved as can be seen on USCIS status check with a COS.

This person changed her mind and somehow decided that she does not want to use the H1 this year as she thought working on the 17 month extended OPT will be a better option. To apply for the 17 month extension, she requested that the employer cancels the H1. The employer’s lawyer already sent a request to cancel the H1 and USCIS status check has not been changed to reflect this request yet. Later, she found out that the employer she works for does not want to enroll in E-verify and thus she cannot get the 17 month extension. Now she wants the H1 back.

I told her to ask the lawyer to pull back the cancellation request if possible. Is this possible?

Let’s say USCIS already cancelled the H1 and the status check page is wrong. Would she be able to reapply for the H1 under the remainder option? I wasn’t sure on this part.

Thanks

[txh1b]

It is a major blunder on the part of the F1 holder to think that s/he can get back on the 17 month OPT after H1b was approved. Even if the employer was an everify enrolled one, the F1 status is lost after a COS to H1b even if it is in the future. The cancellation of that H1b cannot put the person back on F1 under ANY circumstances and make him/her eligible for going back on F1/OPT.

The cancelled request may not be possible to withdraw due to the logistics. The employer may have to file another H1b, if needed and get the approval one more time as the person has a cap number. If this is not done, the person becomes out of status as OPT extensions will be denied.

[DMX17]

Thanks.

This may help future visitors/members.

[txh1b]

The sensible thing to do for F1/OPT students is NOT to opt for COS when changing to H1b. Even if that involves going for a visa stamp in the future or filing for another amendment and waiting for approval in the future, it provides option to maintain F1 and continue on OPT.

Once a COS is approved, F1 status is lost forever and the person has to start on a higher degree and complete it to be eligible for OPT again.

[DMX17]

I am not sure what the lawyer was thinking then. S/He should have warned her against this though. Apparantly, didn't.

I didn't even think about losing F1 status once the COS was approved at all. I should think about the issues in detail. I completely missed this one.

[txh1b]

That is the advantage of people posting questions on the public forum. Collective knowledge and collaboration of ideas from multiple users helps.

[helpwithh1]

Need some more clarification

Thanks to DMX for posting this question on the forum for us.
I want to know if my wife is under the cap number. We may be able to file another H1 with the same or different employer, but if the previous H1 was canceled, can she get another H1 as she is in the cap.

Can someone let us know for sure if this is the situation?

Also one of my lawyer friends said that since the H1 was canceled even before it came into effect, there is no problem with the F1 status. The reply from this forum says that, just upon approval of H1, you loose F1 status.
Can I get some clarification here?

[DMX17]

It was concluded from the discussion that she will be cap-exempt and can file another H1 (same employer or different employer) any time.

Since the H1 was approved with a COS, F1 status will remain till Oct 1st. You need to apply for a COS with H1 again before that.

[txh1b]

Also one of my lawyer friends said that since the H1 was canceled even before it came into effect, there is no problem with the F1 status. The reply from this forum says that, just upon approval of H1, you loose F1 status.
Can I get some clarification here?

What clarification do you need on this? If your lawyer friend says so, s/he is wrong. What kind of lawyer is s/he? An immigration lawyer? Talk to an immigration lawyer or look at school websites that give information about OPT/F1 status.

You can also look at chat logs of famous attorneys to confirm the matter rather than taking the words of few forum members who are not qualified in the first place to talk legal stuff.

Another H1b can be applied as she has been cap counted.

The coming into effect argument does not hold good in this case. It applies to other visa status like say H1/H4. Say a H4 person has a H1b approved with a future start date of Oct 1st. If the employer revokes the H1b before it starts, it does not put a person back on H4 status past Oct 1st but makes the person illegal and out of status.

This person has a choice to apply for H4 extension/COS before the H1b kicks in or travel out before Oct 1st and travel back in after Oct 1st to go back to H4 status.

For a F1 holder, it works completely different. The OPT is granted only if one has completed 9 months of school.

[helpwithh1]

Thanks
Unfortunately, my wife cannot go on H4 because, I am a GC holder and got married after getting my GC.
We are trying to contact the USCIS and put a request to see if they can withdraw the cancellation request. If that happens her present H1 will be ok.

Even otherwise, since she is under the cap, we may re-file for her H1 again. Do you know if we have to submit the canceled H1 paperwork along with the new one?

[txh1b]

Even otherwise, since she is under the cap, we may re-file for her H1 again. Do you know if we have to submit the canceled H1 paperwork along with the new one?

No. Only need proof of H1b approval from first company. You need to act fast as she needs to have another H1b approved before Oct 1st otherwise she will fall out of status as she has F1 only until Oct 1st and no status after that.

Go for premium process on another H1b. The withdrawal of revoke is a hit or miss and USCIS takes 2-3 months to revoke a H1b. And re-instating a revoked H1b is generally not possible for current H1bs. Since, this is a future H1b, they might have a possibility but I doubt it as USCIS would ask for filing a new H1b and get the fees etc.

Good Luck and report on the forum what happens.

One good thing is there is no need to panic as she has a H1b cap number. All she has to so is leave the country and come back with a new H1b stamp if the H1b approval gets delayed past Oct 1st or go for premium processing so that a COS is approved before F1 expires.

[helpwithh1]

So, we had the consulting company call the USCIS and tell them not to process the H1 cancellation letter. In that regard they are gong to Fedex another letter asking them not to open the previous letter. The employer said that this will work. Also I have taken an appointment with the immigration officer next tuesday and will talk to him about her case.
My wife's employer is going to send her a letter authorizing that she can talk about her case with the officer.

Looks like they may not cancel the H1 at all. But I will keep monitoring and see whats happening. I will also update the forum as soon as things happen.

I would like to thank you all for the information provided, especially DMX for getting the thread started in response to my email

[txh1b]

So, we had the consulting company call the USCIS and tell them not to process the H1 cancellation letter. In that regard they are gong to Fedex another letter asking them not to open the previous letter. The employer said that this will work.

That is not going to work due to the chronological sequence of the events. Do you think USCIS has time to open and look at the second letter not to act on the first one? I honestly don't think they have that.

Well, if it works, how would you know it worked? USCIS does not send any confirmation for such letters or revoke requests.

That is the reason why Brown (UPS) can intercept packages and redirect it!

[helpwithh1]

Well
The employer said that the USCIS asked him to do that. He said that this letter will be received and kept in her file, and the officer when acting upon the letter will take a look at the recent one and ignore the previous one.
I do not know if this can happen? Does USCIS work this way.

When I was on the phone with USCIS people, they said if the employer calls them, then they can send an email to the service center and ask them to ignore the letter that was dated so and so. Can this approach be followed?

I was optimistic in the morning, but after reading your reply, I may have to check with the employer again.

[txh1b]

USCIS Call center people are not knowlegeable about immigration laws. What they say needn't be right.

Employers, that too small business consulting companies, don't know much and will say something to satisfy you get you off their back.

Talk to a lawyer that is good. There are many immigration lawyers that are out there without good skills in their profession. Go for a second opinion if the issue is critical or go with famous trusted lawfirm even if their consultation costs $$$$.