URGENT HELP ; h1b to f1 denied because of i94 expiration.

[problems101]

Hello,
I lost employment early may. I have been going to school while i was on h1b and i only have a semester left. My h1b expired on end of may. my i94 expired on middle of june. Based on recommendation by intl advisor, I applied for COS for Fall semester as soon as my employment ended (within two days).

I received letter of denial last week stating that since my i94 expired on mid june and my semester only starts mid august, there is more than 1 month gap during which time i was out of status, which is not allowed by law. It says that by law I can be in US no early than 1 month prior to start of school. I was under impression that as long as I file for COS before expiration of my H1B/i94, the expiration date should not matter because the case is pending. The letter does not say I have to leave in 1 day or 30 days.

What are my options at this point? Also, Should I go back and file for f1, or should i stay here and file for MTR?

Any of you have some experience regarding this? Also, if I were to go back in my home country and reapply for F1, is it better to put myself as a sponsor and show my US bank statement (I have more than enought funding for the school), or should I put my elder brother who has a GC and is currently working? Would putting my brother as sponsor/co-sponsor be against my favor (since he has GC , Home, and good job, maybe the counsulate will assume that i'll be more inclined to stay at US)?

Any help would be greatly appreciated. tHANKS

[shervin143]

Change of staus should be applied before the current I-94 expires. Just applying for a COS doesn't give you a valid status to stay in the country. If the COS is approved, then you are all good. If it gets denied (like in your case), then the date on which I-94 expired to the date until which you remain in the country will be treated as illegal stay. I don't think filing an MTR will help in your case as your semester starts only in mid of August.

You should leave the country immediately, get your F1 stamped and re-enter in F1 status right before the semester starts. The more the illegal stay, the more problems when you attend the visa interview the next time.

[kabkaba]

F1 has special rules. F1 status starts only 30 days before the school start date on I-20. So even if you applied for COS before your I-94 expired and you were allowed to stay based on the pending petition, USCIS could not approve your petition because of the gap between F1 start date and I-94 expiry. You need to go back to home country, get an F1 visa and enter using that visa within 30 days of class start date.