Need Recommendations for Student Visa/H1B-F1 change of status

[Anir.Raj]

Hi,

I've a few questions regarding student visa/H1B-F1 cos.

Background: I'm currently working in USA in H1 visa that is valid till Dec 2015. It is maxing out after that (i.e. I'm completing 6 years of stay/work in US in Dec 2015). I wanted to pursue Full Time graduate studies and have been applying to MS in Computer Science in universities in US/Canada. I've got offer of admission from a few universities in US and Canada ( starting Fall 2015) that I'm considering; and am in final stages of deciding where to go.

Questions

1. I understand applying for a change of status from H1-F1 will be the preferable way - is there any reason to think otherwise? What are the pros/cons of doing H1-F1 vs applying for a fresh visa and going to my home country for stamping?

2. One factor for the above is processing time - can anyone comment on the actual processing times? From different forums I get it is 1-3 months, and as per USCIS processing time is 2.5 Months (https://egov.uscis.gov/cris/processTimesDisplayInit.do, California Service Centre, I-539). However any real life advice will be helpful.

3. In one of the universities - the immigration counsellor told me even if I don't get it processed by the term start date (~late Aug 2015), and even if I quit my job - I will still be able to start classes - with an open/pending case status for my H1-F1. However I was told to seek legal advice on this.
Is the above true? can anyone point me to any documentation confirming/ repudiating this?

4. If I apply H1-F1, will the Start Date of F1 be something I can request/based on University documentation, or it will be whenever the COS is approved? If it is done before term start date, will I have to quit my job earlier?
To clarify, my intention is to continue to work here in US till ~mid August, and then move to the university directly. I was wondering whether I can do it.

5. If I apply H1-F1, is there any way to withdraw the request/defer to a later date?
Again, reason for my asking is for one of the universities in Canada my application was delayed and they have told me my offer might get pushed back to Jan 2016. I wont have a confirmation on this soon, so If I apply for H1-F1 and then decide to go school in Canada in Jan, I was wondering whether I could work in US till Dec.

6. In similar lines, If I don't get my H1-F1 approved by late August, and if the answer to Q3 is no, what will happen? (Lets say I get it in October).The universities have told me in that case they are okay with accommodating me for Jan'16 semester - however will I be able to work till Dec?

7. Does any CPT/OPT consider H1B Max out? I mean, will I be able to work in CPT/OPT independent of H1B maxout?
Additionally - I believe If I move to H1B after OPT, the maxout will still apply?
However If I spend outside USA for 1 year or more in between, it will be refreshed, and I can get H1B extension again. Is that correct?

I know I've many questions and this became a bit too long. Appreciate any/all advice you can give me and thanks a lot for your help.

Best,
Anir
[email protected]

[rj87]

Re:

Dear Anir,

I am not a lawyer or an expert on these matters but I have had a lot of experience in the last couple of years dealing with COS myself (and still waiting).

1. I understand applying for a change of status from H1-F1 will be the preferable way - is there any reason to think otherwise? What are the pros/cons of doing H1-F1 vs applying for a fresh visa and going to my home country for stamping?
Ans: Processing time currently varies from one processing center to another. VSC vs CSC vs online for either. Some people have complained that they have been waiting for 8-10 months now.

2. One factor for the above is processing time - can anyone comment on the actual processing times? From different forums I get it is 1-3 months, and as per USCIS processing time is 2.5 Months (https://egov.uscis.gov/cris/processTimesDisplayInit.do, California Service Centre, I-539). However any real life advice will be helpful.
Ans: Exactly my point in #1.

3. In one of the universities - the immigration counsellor told me even if I don't get it processed by the term start date (~late Aug 2015), and even if I quit my job - I will still be able to start classes - with an open/pending case status for my H1-F1. However I was told to seek legal advice on this.
Is the above true? can anyone point me to any documentation confirming/ repudiating this?
Ans: This is at the discretion of the college I believe. I had the same problem last year and my university did not allow me to begin school without an approved F1. You should talk to your university re: this. This is what my lawyer told me too.

4. If I apply H1-F1, will the Start Date of F1 be something I can request/based on University documentation, or it will be whenever the COS is approved? If it is done before term start date, will I have to quit my job earlier?
To clarify, my intention is to continue to work here in US till ~mid August, and then move to the university directly. I was wondering whether I can do it.
Ans: I had this same question as well. And have gotten different responses so far. My school said that USCIS will try to give you an effective date closer to your start date. Some other people said that the approved date will be the effective date. And some others said you should request for an effective date on the application.

5. If I apply H1-F1, is there any way to withdraw the request/defer to a later date?
Again, reason for my asking is for one of the universities in Canada my application was delayed and they have told me my offer might get pushed back to Jan 2016. I wont have a confirmation on this soon, so If I apply for H1-F1 and then decide to go school in Canada in Jan, I was wondering whether I could work in US till Dec.
Ans: You may withdraw by sending a letter to them as long as it has not been approved by then. You may be in trouble if you decided to defer but also got approved for the COS.


6. In similar lines, If I don't get my H1-F1 approved by late August, and if the answer to Q3 is no, what will happen? (Lets say I get it in October).The universities have told me in that case they are okay with accommodating me for Jan'16 semester - however will I be able to work till Dec?
Ans: If you have an unexpired H1B and your COS is still pending, you may work until your COS is approved and effective.

7. Does any CPT/OPT consider H1B Max out? I mean, will I be able to work in CPT/OPT independent of H1B maxout?
Additionally - I believe If I move to H1B after OPT, the maxout will still apply?
However If I spend outside USA for 1 year or more in between, it will be refreshed, and I can get H1B extension again. Is that correct?
Ans: Not sure about this question, sorry!

RJ

[Annak]

I am planning to enroll for school this fall (Aug 28, 2017) and will be initiating my H1b to F1 Change of status. I am planning to file the petition (i-539) with F1 COS effective date as 1 Aug 2017 i.e.within 30 days prior to Class start date.
However, my H1B visa and I94 will be expiring soon ( 7 Aug 2017) hence we will be filing the petition before visa expiry so as to be considered as timely filed.
However, I just got to know from school DSO that until my F1 change of status is approved, I can attend the classes , however they will defer the date on I-20 extending it by every 15 days . (The change of status would take anywhere between 90 days to 6 months)


I see that for B2 candidates a bridge petition needs to be filed. However, how will this work for H1B candidates where an extension is not possible ( without employment cannot file for extension).

in my case, since i will not be on H1b after my visa expiry ( aug 7) and will be quitting my job, I am worried if deferring of this date will make me go out of status as then my program start date will exceed 30 days.
Is there anything I should be aware of or should take action to maintain my status before my F1 approval so that i am not out of status. What would be the best course of action that you would suggest here

Request your inputs here. Thanks a lot!