Can I change from H-1B to F-1?

I have written a couple of blog postings about the effect of layoffs on H-1B workers (see links below). Another common question in this regard is whether the H-1B worker can change to F-1 status and, perhaps, change back to H-1B again if they find another job. Some actual examples of the questions are:

"If I am on H1B visa but I have been laid off by my current employer and they will announce my leaving in one month. I am planning to change to F1 status. If I get another employer later on that sponsor again my visa. Do I get subject to a cap?"

"I have been on an H1B visa for 2.5 years; I am considering attending grad school in Minnesota for my MSME in the Fall, so I would be switching to an F-1 student visa.
My question is: if after I graduate with my Master's Degree, I apply for & get another H1B job - so I switch from F-1 back to H1B visa - do I get a fresh 6 year timeclock started on my new H1B? Or, do I only have 3.5 years left that I can be in H1B status - because of my H1B work time before the F-1/grad school?"

"I have been on the H-1B visa for 1 and a half years.I was laid off recently and am planning to attend school which starts in July 09.
i) Do I need a F-1 visa apart from an I-20?
ii) Do I need to go out of US for stamping?"

Answer:

H-1B to F-1:

A H-1B holder can change fro H-1B to F-1 if she meets all the requirements for F-1 status, including having nonimmigrant intent. "Nonimmigrant intent" means that she needs to show that she intends intend to return to her home country at the end of her studies. Having been here in H-1B status, especially if she has been here a long time, makes it more difficult to show the required nonimmigrant intent. If the applicant or her employer has filed for permanent residence, this completely contradicts nonimmigrant intent.

Despite these warnings, it is not impossible to prove nonimmigrant intent. In addition to this evidence, the F-1 applicant needs to show (a) that she has enrolled in a school and has an endorsed I-20; (b) that she has sufficient funds to pay the expenses for and dependents while studying; and (c) that she will be maintaining status up to the start of classes.

Do I need to leave the US to get an F-1 visa?

The F-1 application could be decided in a number of ways, assuming it is not denied completely. At best, the foreign national could get approval for an automatic change of status to F-1. This would operate to automatically change the foreign national's status to F-1 without the need to leave the US.

However, if the applicant cannot prove maintenance of status, CIS might just approve the F-1 part of the petition, but not the automatic change of status part. This means that the foreign national would need to leave the US and get an F-1 visa at a consulate before returning in F-1 status. The consulate will need eveidence of nonimmigrant intent, as explained above.

Please see here for the difference between "visa" and "status".

Changing back to H-1B later

If the foreign national finds a new employer who files a new H-1B petition, this new petition is not subject to the H-1B cap. The foreign national has already been included in the cap within the past 6 years, so he is not counted again. The only way that the employee would be subject to the cap again is if (a) he used a full 6 years in H-1B status, and then spent one full year outside the US; OR (b) was moving from a cap-exempt H-1B employer to a cap-subject employer.

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Prior postings on layoffs here.

Photo by http://www.flickr.com/photos/david55king/

Can I change from H-1B to visitor staus while I look for work, then back to H-1B?

It may be a sign of the times that the above question (in various forms) is becoming very frequent. Some actual examples are:

"Can I switch to H1b to visitor visa and then back to H1B in a short term? My current h1 is expiring, but I have 2 yrs remaining on my 6yrs. If I change status to visitor visa, can I change back to h1 once i get a new project and start working without leaving the country?"

"My current H1B expires at the end of March 30th, 2009. I was told I cannot currently extend it because I am employed with a staffing company and I do not have a project start date in hand yet and hence no contract agreement with any client, but am working on something that will come through in mid-April or early May. Can I switch to a B2 visa (to keep me in status) and then switch back to H1 without the quota since I have time remaining on my H1, all without leaving the country?"

Answer:

It is unlikely that CIS would approve a B-2 petition for the above foreign nationals, unfortunately. B-2 holders need to have "nonimmigrant intent" i.e. they need to intend to return to their home country at the end of their B-2 stay. Having been here in H-1B status, and being unable to state that they intend to return home, shows that the foreign national probably doesn't have the requiremed nonimmigrant intent. The situation would be different if the foreign national really did intend to return home and was just asking for B-2 time to sell a house, pack, etc. However, looking for a job is not a legitimate B-2 activity.

If the foreign national finds a new employer who files a new H-1B petition, this new petition could be decided in a number of ways, assuming it is not denied completely. At best, the new employer could get approval for their H-1B and an automatic change or extension of the worker's H-1B status. However, if there is a long gap between the last H-1B employment and the new filing, CIS might just approve the H-1B part of the petition, but not the automatic change of employer/extension part. This could happen if CIS considered that the foreign national was maintaining status at the time of filing. This means that the foreign national would need to leave the US and return showing a valid H-1B visa (even for an old employer) and the new approval notice, to "activate" the H-1B status for the new employer.

Please see here for the difference between "visa" and "status". See here for FAQs regarding when a new visa is needed.

Consequences of layoffs on H-1B workers - Part 2

(continued from yesterday)

6. What happens to my green card process if I am laid off?

If you have reached the final step of the permanent residence process, and have filed your Adjustment of Status (AOS), you may be able to remain in the US while the AOS is pending. Just having the AOS filed does not, however, allow you to work in the US or return from international travel once your H-1B ends. You must have specific work authorization (an EAD) to allow you to work and Advance Parole to allow you return from overseas.

A foreign national is permitted change employers and keep the AOS filing if the AOS has been on file for 180 days or more, and the new occupation is in the “same or similar occupational classification” as the one that formed the basis of the permanent residence filing. This means that e H-1B worker who was a Software Engineer for Employer A and then got a job as a Software Engineer for Company B would qualify. However a Software Engineer who went to work as a French teacher could not use this “portability” provision.

If you have not reached the final step of the permanent residence process, unfortunately you cannot complete the existing permanent residence process.

Link to Consequences of layoffs for H-1B Workers, Part 1

Consequences of layoffs on H-1B workers - Part 1

A common question that I am asked, especially in the current economy, is what happens to a foreign national's immigration status and her pending cases when she is laid off. In this 2-part article, I will address the consequences for H-1B workers. Today, I will cover the effect of a job loss on H-1B status. Tomorrow, I'll discuss the effect on the foreign national's permanent residence process.

1. How long can I stay in the US after my H-1B job ends?
A person in H-1B status is legally authorized to remain in the US only as long as they are employed with the H-1B petitioner (“sponsor”). If the employee is laid off, the H-1B worker and dependents in H-4 status immediately lose their status. In reality, most people need at least a few weeks to pack up and sell their residence, take children out of school, etc. While staying in the US to finalize arrangements for leaving is not strictly “legal”, it is very common for foreign nationals to do this.

Laid-off H-1B employees could file to change to visitor status to allow them remain in the US to make repatriation arrangement. As long as the application is filed while the worker remains in status, s/he will remain in status for up to 120 days while the change of status application is pending. The worker will also have to file a new non-immigrant application if s/he stays in the US and finds a new position.

2. Can I stay in the US to look for another job?
The US Citizenship and Immigration Service (CIS) will commonly approve a new H-1B petition as an automatic change of employer if the H-1B holder can provide a paystub less than 30 days (and sometimes even 60 days) old. This means that CIS may approve the change of employer even if the employee has not worked for the former employer for a month or more.

The gap between when a laid-off H-1B worker ends their job and when they file the new H-1B petition is not strictly a period when they are in status. However, as mentioned. CIS will usually overlook this gap in approving a change of employer.

If a new employer files a new H-1B petition and CIS does not approve an automatic change of employer, CIS might still approve the H-1B as a “notify.” This means the worker must leave the US, get a new H-1B visa at a consulate if the existing visa has expired, and return in the new H status to “effect” the new employer’s H-1B.

If the H-1B worker manages to find a new employer before leaving the old job, or very soon afterwards, s/he might be eligible for H-1B “portability.” This allows a H-1B worker to start working for a new employer as soon as the new H-1B petition is filed, rather than wait for it to be approved. Another piece of good news is that the H-1B worker should not be subject to the H-1B cap since s/he was already counted.

3. What are my employer’s obligations if I am laid off?
The H-1B regulations require an employer to pay “the reasonable costs of return transportation of the alien abroad” if the H-1B worker is dismissed before the H-1B period ends.

4. Can I collect unemployment or other benefits while unemployed?
When a nonimmigrant remains in the US in a visa category that prohibits employment (e.g. B-2), or while an employment-based visa is pending, the person is generally not eligible to collect unemployment compensation under most states' laws. This is because unemployment statutes usually require that an individual must be available to work and authorized to accept work to be eligible for benefits. This means that these nonimmigrants cannot claim benefits even though they paid unemployment taxes while they were employed.

5. Can I change to another status to stay in the US?
As mentioned above, you can request a change to visitor (B-2) status. If you are able to find a new employer, you may be able to use one of the other work-authorized statuses if the H-1B is not appropriate. For example, if you are Canadian or Mexican you might be eligible for a TN status if you are working on one of the TN occupations. If you enroll in school you could get F-1 status.

The categories for which you are eligible are very case-specific, so it is critical to get formal legal advice about your exact situation.

Link to Consequences of layoffs for H-1B Workers, Part 2