H1B Extension RFE. I94 Expired. Also MBA Student. Worried

[boncovi]

Hi all,

My first 3 years on H1B expired Oct 1, 2012.

I applied for an extension on June 2012, USCIS finally got back to me with a long RFE letter yesterday (Oct 15th).

I will try to provide as much as I can but I have a feeling that it will be denied. They're inquiring about my specialty occupation and major. It was a surprise to get approved for the first time, this time I don't think it'll fly. So, I want to be ready for worst-case scenario.

I also got enrolled to a full time MBA about 5 months ago. I'm currently taking Masters classes.

Now comes the dilemma;

I would like to provide all the proof I can and answer this RFE. The letter, in exact words, say "Prior approval might have been a gross error on USCIS side". That's why I'm not so hopeful about H1B situation.

At this point (today), if I decide to change my status into F1, can I just go to my school, provide necessary documentation (support etc) and ask for an I-20?

My I-94 expired Oct 1st but I have a pending extension case, since June 2012. Am I considered "In Status" since the RFE period is still going on and I'm not "denied" yet?

What if I answer the RFE and wait for RFE process and eventually get denied? is it going to be too late (since I won't have status right after denial) to start F1 visa transfer?

Let's say I do change of status right now, is it possible that they tell me to leave the US to get a visa?

This is what I read once; What if I change to F1, it gets approved, but at the same time I still answer RFE and after a while, the officer approves my H1B based on my RFE answer. What happens? As soon as I become F1, the H1B case drops? or it continues? Is it going to be H1B to F1 to H1B (after RFE) within weeks? Possible?

Thank you.

[t75]

How are you going to school full time? Your story sounds "fishy".

[boncovi]

The school has evening and weekend classes. I work 9-5 and I go to school 3 days a week, plus Saturday.

Thank you for nothing.

[t75]

Your welcome - you sound like you are going to a diploma mill. Not very bright.

A real university expect that you work 3 hours outside of class for every hour that you are in class. Therefore, a 3 hour class should take you a minimum of 12 hours per week of class and study time at a minimum.

[pontevecchio]

Get a Lawyer on your side.

[h4visa1]

I'm no legal expert nor an immigration specialist but I will answer your question based on what I found since I was in a similar situation in the past.

There is a last action rule which says that the last approval from USCIS will be in effect. Lets say that you applied for F1 COS now and got it approved and if your H1B also gets approved, your H1B will be in effect. Similarly, if your H1B gets approved before your F1 COS, your F1 will be in effect.

Since your I-94 was expired on 10/01, I'm not sure whether you can apply for F1 COS when H1B is pending so lets wait for experts to comment. One thing I'm sure about is that you can't file for F1 COS after your H1B gets denied since you will be out of status the day H1B is denied and technically, there is no valid status for you to convert from.

[boncovi]

Thank you for the legit answers.

I spoke to the school and they say since the I-94 expired, I have no other choice but wait for that RFE answer.

If it gets approved, I have 3 more years of H1B. If it gets denied, I will have to leave (whether I appeal or not) and apply for a new visa outside of the US.

Anyone know anything different, please chime in.