Resigned from H1B employer steps to take next

[Jae Kim]

I will need immediate help please!!!

Here is my immigration case:

May 14th, 2012: I-797C, Notice of Action: I539 Application to Extend/Change Nonimmigrant Status (from H1B to B1) requested receipt received

May 16th, 2012: Official resigned day from my current H1B employer

May 30th, 2012: Last pay-check from H1B employer received

June 11th, 2012: University Admissions to MBA program acceptance letter

July 3rd, 2012: Final Interview in process for new H1B employer

Currently, I should be legally residing in the USA since I have filed the change of status (COS) before my resignation date, correct?. Unless the USCIS denies my application of change of status I should be lawfully staying in the USA during this period of COS, correct?

Question1: Should I cancel (withdraw) my current I539 application since I now can get my I-20 to get on F1 status? The school recommends that I leave the country with the I-20 and come back with the F-1 status since that is quicker than a change of status. (which is Consular Processing) Would there be any issues at the embassy if I leave the country with the I-20 despite the fact that I had initially filed I539 application and withdraw during my stay in the USA after I resigned from my H1B employer?

Question2: If a new employer hires me within the next month (before my B1 status change finalize) and is willing to petition the new H1B, would I simply cancel (withdraw) my current I539 application since I now can get my H1B petition in? Once the new H1B petition is in (should not be subject to quota) and a valid receipt of notice is received from the USCIS I should be able start work, correct? Would there be any issues with the new H1B petition since I had initially filed I539 application and withdraw during my stay in the USA after I resigned from my previous H1B employer?

Any advice will be greatly appreciated! or any confirmations, thank you very much!!

[shervin143]

Question1: Should I cancel (withdraw) my current I539 application since I now can get my I-20 to get on F1 status? The school recommends that I leave the country with the I-20 and come back with the F-1 status since that is quicker than a change of status. (which is Consular Processing) Would there be any issues at the embassy if I leave the country with the I-20 despite the fact that I had initially filed I539 application and withdraw during my stay in the USA after I resigned from my H1B employer?
>>> If you withdraw the B2 application, then the time spent in U.S after the last working day with the H1B sponsor will be treated as out of status period (Assuming you still have a valid I-94 associated to H1B). Being out of status is always an issue.

Question2: If a new employer hires me within the next month (before my B1 status change finalize) and is willing to petition the new H1B, would I simply cancel (withdraw) my current I539 application since I now can get my H1B petition in? Once the new H1B petition is in (should not be subject to quota) and a valid receipt of notice is received from the USCIS I should be able start work, correct? Would there be any issues with the new H1B petition since I had initially filed I539 application and withdraw during my stay in the USA after I resigned from my previous H1B employer?
>>> Read the above answer. You should not withdraw the B1. It will make out of status. When you are out of status, a successful transfer or a COS to any other status is not possible. Also, if you file a COS to F1 to H1B based on the pending B2, then you should be aware of the last action rule. Search and read about the last action. Last action rule does not apply if you file the H1B or F1 for consular process.

[Jae Kim]

Thank you so much for your reply!

So I guess the best thing is that I wait until my B-1 change of status is approved?
What if in the case after the 90 days or so I wait for the decision of the I539 application and I find that it has been very unfornately it might be denied?
Would leaving the country immediately after I have been notified of my COS deinal be ok? (since during the COS timeframe I am lawfully in USA right?)
Would I then be able to go back to my home country and go through the consular process to apply for new F-1 or H1B visa status?

Again, thank you so much for the information.

[shervin143]

So I guess the best thing is that I wait until my B-1 change of status is approved?
>>> Yes.

What if in the case after the 90 days or so I wait for the decision of the I539 application and I find that it has been very unfornately it might be denied?
>>> You will have to leave the country immediately to avoid more out of status / illegal stay.

Would leaving the country immediately after I have been notified of my COS deinal be ok? (since during the COS timeframe I am lawfully in USA right?)
>>> Leaving the country is the only option. Your stay is legal only if the COS gets approved.

Would I then be able to go back to my home country and go through the consular process to apply for new F-1 or H1B visa status?
>>> Possible.

[Jae Kim]

Thank you again. It seems that I am in a situation that I just have to wait. Sorry to ask further questions but:

Is normally 6 month an ok period to ask for a COS to extend stay in the USA by a B1 Visa from an H1B?
What are some of the typical documents that are needed for H1B to B1 COS?
I have provided a letter of intent - (Saying I have to take care of financial responsibility)
Financial Proof - (bank statement of about $12,000)
Return Ticket - (one way back to my home)
Passport copy
I-94 back and front
Paystub - (over the last 3 month with the H1B employer)

I Just wanted to make sure all my application is ok so that I can be sure I will get my B1 COS from H1B. Thank you so much again! I greatly appreciated your kind help!

[shervin143]

Is normally 6 month an ok period to ask for a COS to extend stay in the USA by a B1 Visa from an H1B?
>>> You cannot ask more than 6 months on B1/B2. That is the max.

What are some of the typical documents that are needed for H1B to B1 COS?
>>> All approval notices, latest I-94, latest payslips from H1B, copies of passport & visa cover letter explaining why you are requesting B1/B2, application and Check.

I have provided a letter of intent - (Saying I have to take care of financial responsibility)
Financial Proof - (bank statement of about $12,000)
Return Ticket - (one way back to my home)
Passport copy
I-94 back and front
Paystub - (over the last 3 month with the H1B employer)

I Just wanted to make sure all my application is ok so that I can be sure I will get my B1 COS from H1B.
>>> If they need more documents from your, they won't just reject the application. They will send you an RFE to submit additional documents. But if they are not convinced that you sre requesting B2 for the right reason, the application for COS can get denied.