H1B approved but change of status not approved.

[imfromind]

Hi all,

I'm on OPT till July 2012 .My employer has applied for H1 in November 2011,but due to personal reasons, I went to India in January.I entered US with my OPT status and later in April 2012, I got my H1b approved but my change of status(COS) was not approved (got I-797B).And the reason they mentioned is my India travel while petition is still in pending.

This is what it is in USCIS letter if interested:

"Title 8,Code of federal regulations(8CFR),Part 248.1(a), Provides the alien who is continuing to maintain nonimmigrant status may apply for COS.An alien on whose behalf a COS has been filed and who travels out side the US before the request is adjudicated is considered to have abandoned the request for COS and the petition be denied pursuant to 8CFR &248.3(g).

USCIS records indicate that on Jan **,2012 beneficiary departed US and returned on Jan**,2012.

Because beneficiary departed US while COS is pending, the beneficiary is considered to have abandoned the request for COS.The beneficiary's subsequent return to US doesnt negate the abandonment of status.

After complete review, it is ordered that your COS is denied pursuant to 8CFR &248.3(g).

This decision leaves the alien without lawful innigration status and the alien is therefore present in the US is violation of law this alien is required to depart the US.Remaining in the US without authorization may result in initiation of removal proceedings against the alien and may affect their ability to return to US in future."

Here are the concerns,that I have now:

1)Will I still be in OPT status till July 2012,as COS was not approved and I had valid status till July 2012.So as to have some time before I go for stamping.

2)Is there any possibility that I can apply COS while staying in US without leaving the country.(Like amendment of LCA or something like

that...).

3)On my I797 USCIS stated Consulate:Hyderabad.(I saw this was because in I129 petition part 4 my lawer had mentioned my foreign address as Hyderabad).So, will there be any issues if I got to Canada for COS stamping.If there are no issues do I need change my consulate to US consulate in Canada.

I know this is lot of information and lot more questions.But, I was so worried about this.Any help is definitely appreciated.

[wiweq]

1)Will I still be in OPT status till July 2012,as COS was not approved and I had valid status till July 2012.So as to have some time before I go for stamping.

=> Yes you are in F1 status till July 2012.

2)Is there any possibility that I can apply COS while staying in US without leaving the country.(Like amendment of LCA or something like

that...).

=> You can file COS from F1 to H1b. You would need to file I539. Search it on USCIS website. (Wait for other expert comments to approve this)

3)On my I797 USCIS stated Consulate:Hyderabad.(I saw this was because in I129 petition part 4 my lawer had mentioned my foreign address as Hyderabad).So, will there be any issues if I got to Canada for COS stamping.If there are no issues do I need change my consulate to US consulate in Canada.

=> If you want to go for stamping go the consulate mentioned on I797 i.e. Hyderabad. Call to VFS to make it sure.

Best bet, file COS. You have enough time to get it approved. Generally, it takes like 1-2 months. 15 days for receipt and 1.5 months to get it approved. In the case, if it is not approved, you will still have an option to leave USA, get H1b stamping and re-enter. For filing COS from F1 to H1b you need to submit the documents proving your current F1 status (like I20, letter from school) and future status i.e. H1b (like letter from employer, I797, LCA, client letter etc.). More questions/ doubts? Let us know.

[imfromind]

Thanks a lot on this WIWEQ..:)I really appreciate your help...But i have one last question(probably..)

since I will be on f1 status till july, can I come back to US on this F1 status if I go for stamping before f1 expires... in case if my H1 is denied or given 221g ?

[wiweq]

"Thanks a lot on this WIWEQ..:)I really appreciate your help...But i have one last question(probably..)

since I will be on f1 status till july, can I come back to US on this F1 status if I go for stamping before f1 expires... in case if my H1 is denied or given 221g ?"

Yes, you can enter in USA as long as your F1 visa and I20 is not expired. They may ask you to submit your passport for 221g. You have all the rights to deny submitting your passport to them and withdrawing the H1b visa. As you know, resolving 221g is taking months these days. By the time 221g is resolved, your F1 may expire.