H1-F1(Questions on maintaining legal H1B status in the short term)

[toomuchguy]

I'm currently a client of the MURTHY LAW FIRM(GC process) and needed some clarification on some questions with regards to my wife's H1B status.

Case Background:

Current Status: She is Working full-time(i.e. full benefits,genuine biweekly pay stubs etc..in short as legit as it gets) on H1B for the last 3

years at a regular (i.e. non-desi-consulting) company in Texas. In addition to working full time, she is currently pursuing

part-time (i.e. <= 6 credits per semester) Masters in Computer Science at a reputed university in Texas.

So why this posting: Starting from FALL 2012 onward, she is planning to study fulltime(i.e. take 9 credits).

In order to quality for OPT in future, she needs to be a fulltime student for 2 consecutive sems(ie. Fall 2012 and Spring

2013). She will be switching to F1 status sometime in Dec 2012 when we'll visit our home country. However, our main

problem/pain point is maintaining valid H1B status during FALL 2012 semester as she will have to do both STUDY and

WORK full-time during the FALL 2012 semester. Also applying for CHANGE OF STATUS to F1 is not an option as that

might take close to 3-4 months to get approved anyways.

So what's the plan: Take 2 days off every week(days she has to attend clases) for the Fall 2012 semester, resign before leaving for home

country and get a fresh F1 visa before getting back. She has enough vacation accrued(i.e PAID TIME OFF) to cover

most of this time however she is probably short approx 50-60 hours(essentially LOSS OF PAY OR UNPAID

LEAVE...whatever u want to call it). Her employer is OK with this arrangement and is willing to do whatever is necessary

to help her.

Questions:

1. Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME
   
2. Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave?
   
3. Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview?
   
4. In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview
   
5. As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter,if part of this payment comes via her PAID VACATION payment.
   
6. I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future?
   

In short, even though our intentions is and has always been to STICK TO THE LAW, we don't want to accidently do anything that will jeopardize our future I-485 application. Hence, it would be much appreciated if you guys could guide us with your valuable feedback on this matter.

[wiweq]

• 
  
  • Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME
    

  [*]

  => Yes, one can take fulltime courses on H1b.

  • Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave?
    

  => As long as it is equal or more than LCA salary (overall), it ok.

  • Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview?
    

  => You can take voluntary leave for any reason for vacation too.

  • In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview
    

  => Should not be a problem. They see the paystubs to make shure that there is a relationship between employee and employer. To make sure you are paid equal/ more than LCA salary, have all those paystubs to prove that.

  • As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter, if part of this payment comes via her PAID VACATION payment.
    

  => You are right, payments should be for 40 hrs, doesn't matter where it comes from. Paystubs may be with $0 too.

  • I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future?
    

  => No, no problem.

[toomuchguy]

First of all thanks for your valuable and PRECISE feedback. I had the following follow-up questions based on your response and would appreciate your response on the same.

=> Paystubs may be with $0 too.?

By this, did you mean that all 24 paystubs needs to be generated irrespective of its amount. i.e. even if one out of the 24 paystubs is 0$, as long as the combination of the REST (23 paystubs) is >= LCA salary, she is considered to be in valid H1B status.

=> You can take voluntary leave for any reason for vacation too.

How should she document the fact that she is TAKING VOLUNTARY leave and is not being benched intentionally. In other words, how can she communicate her CLEAR LEGAL INTENTIONS and thus improve her changes of getting the F1 visa at the time of her interview

Thanks for your time

toomuchguy

• 
  
  • Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME
    

  [*]=> Yes, one can take fulltime courses on H1b.

  • Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave?
    

  => As long as it is equal or more than LCA salary (overall), it ok.

  • Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview?
    

  => You can take voluntary leave for any reason for vacation too.

  • In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview
    

  => Should not be a problem. They see the paystubs to make shure that there is a relationship between employee and employer. To make sure you are paid equal/ more than LCA salary, have all those paystubs to prove that.

  • As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter, if part of this payment comes via her PAID VACATION payment.
    

  => You are right, payments should be for 40 hrs, doesn't matter where it comes from. Paystubs may be with $0 too.

  • I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future?
    

  => No, no problem.