H1B to B2 change of status


mkny

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Hi,

 

I am in a very strange situation. My last date at my current employer is on Oct 10 (lay off). They told me about it a month back and I found a job through a consultant. The lawyer had filed LCA on 24th Sept and was expecting to get it by Oct 1st, but as luck would have it, DOL closed on Oct 1st and lawyer does not have any status update on whether the LCA is approved or not. Due to this, he cannot file for H1B transfer (Premium Processing). I have less than a week to do something about status, so I am thinking to change my status to B2 and I have to do it today or latest by Monday (10/07) so that a lawyer can file it before Oct 10. My i-94 is valid till Nov 2014.

There is one more thing, my wife is going to have baby in next week, so techically even otherwise it is not possible for us to travel back to India anytime soon. Is this good enough reason to ask for some more time on B2 visa?

 

I'm not sure what to do. I request senior members on this forum to guide me.

 

1. If I change to B2 on Oct 10 and few days later, DOL starts functioning, the consultant will file for H1B (Premium Processing). Will it create any problems since my B2 is already in pending status?

 

2. If B2 is pending and H1B is filed, should I cancel B2 before filing H1B or wait for H1B to get approved and then only cancel B2?

 

3. Even otherwise in future if some new employer wants to file H1B, I don't have to wait for B2 to get approved in order to file for H1B right? Will it create any problems when I go for stamping (given that I changed from B2 to H1B).

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There is one more thing, my wife is going to have baby in next week, so techically even otherwise it is not possible for us to travel back to India anytime soon. Is this good enough reason to ask for some more time on B2 visa?

 

Dude, what your are doing is right. You don't have any option so you filed for B2, in my opinion you are good.

But to be on safe side, consult some attorney.

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You should go by what your Lawyer says. Since the fault is not yours and many others are also affected I would expect them to be very lenient with OOS issues during the shutdown.

 

I talked to 2 lawyers and they say different things. One lawyer says that I will be out of status the moment I am out of job, so Oct 11, and so it is better to file COS to B2 to show good faith of maintaining valid status. Another lawyer who filed LCA says that since LCA is already filed (though it is not yet approved due to DOL shutdown), I am automatically considered in status until 30 days after my last employment day, which I do not think is correct. What to do?

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I talked to 2 lawyers and they say different things. One lawyer says that I will be out of status the moment I am out of job, so Oct 11, and so it is better to file COS to B2 to show good faith of maintaining valid status. Another lawyer who filed LCA says that since LCA is already filed (though it is not yet approved due to DOL shutdown), I am automatically considered in status until 30 days after my last employment day, which I do not think is correct. What to do?

I would file a COS to B2 and if possible withdraw it once H1B is approved.

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Have one and only one Lawyer file your COS to B2 with a covering letter about the situation.

 

Thanks but that lawyer is refusing to do COS to B2. He is saying that I should not worry about it. But technically I will be out of status on Oct 11 and to cover my side, I think it is better to file COS to B2. My only worry is if I do that, does it revoke my new H1B?

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