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View Full Version : Quitting work on H1B, need a month cap


h1tof1
03-06-2011, 06:39 PM
Hi,
I am starting graduate school upcoming fall and I plan to quit work April 1st, stay a month to relocate to another state, and then go back home to get my F-1 visa and other paperwork set. How can I get a one month cap?

- Would asking for an unpaid leave for April work? This is highly dependent on the employer so it might not work out

- I have read stuff about "change of status" from H-1B to F-1. How would that work? How can I do that and still go back home to get a visa stamp?

I am out of ideas. I really need a month after work to get my stuff together.

krishmunn
03-07-2011, 10:12 AM
You should apply for a change of status to B1. This should give you enough time.

h1tof1
03-09-2011, 01:39 PM
Ah thanks! Tourist visa should work too. Do I file form 539? Do I need a lawyer or does my employer have to be involved? Abandoning the change of status should not cause me trouble at getting an F-1 visa/stamp from a U.S. embassy right?

h1tof1
03-12-2011, 03:28 AM
I have a somewhat more complicated question, so my H1B is valid for a few more years.. If I do a change of status to a tourist visa to extend my stay, leave the country (thus abandoning the COS), get an F1 visa stamp, and complete my master's.. Can I still do a change of status to H1B (i.e. CAP exempt) in case I find an employer post-master's?

Thanks immigrationvoice.

h1tof1
03-15-2011, 06:21 PM
Anyone? Krishmunn? :confused:

Mayday
04-03-2011, 05:31 PM
Ah thanks! Tourist visa should work too. Do I file form 539? Do I need a lawyer or does my employer have to be involved? Abandoning the change of status should not cause me trouble at getting an F1 visa/stamp from a U.S. embassy right?

if you change to B2 and then leave you will be absolutely fine to get back on F1.

however if you plan to change to B2 while applying for F1 then no, you will be violating the law, because to get B visa you must show that you will leave country afterwards and having F1 in process and then changing from B2 to F1 may be reject on you violating the law in the first case. So if you plan to stay in the USA for these several months and then transfer to F1 choose different type of visa, transfer your H-1 for example or get an extension :) when your current I-94 expires?

Mayday
04-03-2011, 05:39 PM
I have a somewhat more complicated question, so my H1B is valid for a few more years.. If I do a change of status to a tourist visa to extend my stay, leave the country (thus abandoning the COS), get an F1 visa stamp, and complete my master's.. Can I still do a change of status to H1B (i.e. CAP exempt) in case I find an employer post-master's?

Thanks immigrationvoice.

You should be fine with any H-1B during 6 years of first petition and count. Actually if I understand the quote below correctly, you can use the H-1B until you exhaust all 6 years available for that cap count. So, let's say, you work for three years, leave USA for four years, and you still eligible to come and work for other 3 years. Correct me if I am wrong on this assumption. However p.3 of H classification Supplement section of I-129 only requires to list H periods for the past 6 years.


Section 214(g)(4) of INA provides that "the period of authorized admission as [an H-1B] nonimmigrant may not exceed 6 years." INA section 214(g)(7) provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

In AAO Adopted Decision 06-0001, USCIS has confirmed that the six-year period of maximum authorized admission accrues only during periods when the alien is lawfully admitted and physically present in the United States.