Layoff on H1B.....Questions about COS?

[rtrt_195]

Here is my situation. Lost job (H1B) on 12/17/08. Employer will not revoke H1 till 12/31/08. Employer will pay severance till end of March via regular paychecks. Now have two options. Please suggest. Thanks in advance.

Option1:
Wife is on F1-OPT working. She will apply for H1B in April. I can apply for COS this week to go on F2. But Nebraska center processing time is 6-8 months. Talked to the lawyer. She told me that if I find another H1 job while F2 is pending, I will have to leave the country or apply for canceling the F2 petition and get the new H1 stamped and come back in the country. That way I am revoking my F2 application. But I have heard cases where even after traveling out of country, USCIS approved F2 then I will be on F2 due to it being latest action. My questions are:
1. How do USCIS sees it if I go on F2 for maintaining status and come back on H1 when I get a job? Especially during visa stamping session?
2. I think since I already have a H1, I won’t come under quota when I apply for F2 to H1? Is this correct.
Option 2:
Company A is ready to transfer my current H1 for me but they are a software consultant company. My background and current job is in mechanical engg. If I just transfer H1 to company A to maintain status and find another job with Company B(mechanical engg firm) in next two months, I will be ready to able to transfer the H1 to this new employer (Company B). Will there be a problem with LCA while doing H1 transfer, if I apply through a software consultant company.

Which option is better 1 or 2? Is there any pitfall in option 1 that I didn't consider?

[txh1b]

You cannot *just* transfer the h1b to any employer. You should have a job that you qualify for with them. Any travel will void a COS request. So, last action will be the action at POE on the I-94 issued.

Rest is your choice. You should go with your legal limits rather than find a crook to transfer the H1b. It will not get approved and will cause problems.

[rtrt_195]

Thanks for your reply. I know that going for F2 is the legal and right way to do. LET US SAY......
I will apply for F2. Then my status will be F2 petition pending for 6-8 months. That will give me some time to find a employer with correct job description to sponsor my H1. Once I get H1 from my new employer, I can travel to Canada and get the stamp to ensure that I-94 at entry becomes latest action and pending petition for F2 gets cancelled. BUT...
My wife will apply for H1 on April 1st, so will my petition for F2 get canceled the moment she applies for H1 and will I go out of status? Or since her H1 doesnt start till September 1st, my F2 petition will still be valid status?
Ofcourse, If I find a job before March 15 th and apply for H1 myself, then I dont have to worry about anything? Did I miss anything?

[txh1b]

Your F2 petition remains valid as long as F1 status is being maintained. Just appying for H1 will not void F1 status but an approval of COS to H1b will void the F1 from Oct 1st.

You can find a job, apply for the H1b transfer (Extension of stay) using the pending F2 COS receipt, Old H1b. You can begin work only after approval. If the approval comes with an I-94, you can withdraw the F2 COS request or go out and get a new I-94/visa and return to void the COS.