H1B to H4 or re-enter on B1/B2

[konichiwa]

Hello forum,

Bear with me, I've searched a fair bit before posting. I'm currently on H1B with a reputable employer, valid till 2016. However I have resigned from my current position and have 27 Dec as my last working day.

 

While I'm interviewing with other prospective employers, clearly nobody will be able to file an H1B petition before 27 Dec. Now I'm debating how to stay in status:

 

Option A: Change to H4 using form I539. My spouse is employed on a H1B.

Option B: Exit the country and re-enter on a B1/B2 stating that I wish to attend job interviews at Point-of-entry. I currently have a valid B1/B2 visa stamped in my passport as well.

 

I'd like to choose an option that makes it easier for me to start working once my next employer applies for an H1B.

 

I understand Option A means I have to wait for the H1B to be approved and then start employment, subsequently also revoking the CoS to H4 if still in process by then.

 

The more interesting situation is Option B and I'd like an expert opinion on whether H1B portability rules apply or not. I exit the country when my previous H1B employment finishes, and re-enter on B1/B2. I never go out of status. My H1B petition remains valid till 2016 and the petitioner doesn't revoke it immediately - that's what they tell me. Under H1B portability rules, say I stepped out of the USA, returned on a B1/B2, in 2-3 weeks my next employer applies for an H1B and gets a receipt, can I request CoS from B1/B2 to H1b and start working?

 

The AC21 rules in this regard say:

In order to qualify for the portability rule, an H-1B holder, under the qualifications specified byINA 214(n)(2), must be an individual:

1. who has been lawfully admitted into the United States;

2. on whose behalf an employer has filed a non-frivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and

3. who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.

I seem to be fulfilling all the criteria. Can I start work as soon as the new H1B petition is filed? I of course understand the risks of such a petition being denied putting me out of status from the date of filing.

 

Thank you!

[jairichi]

Hello forum,

Bear with me, I've searched a fair bit before posting. I'm currently on H1B with a reputable employer, valid till 2016. However I have resigned from my current position and have 27 Dec as my last working day.

 

While I'm interviewing with other prospective employers, clearly nobody will be able to file an H1B petition before 27 Dec. Now I'm debating how to stay in status:

 

Option A: Change to H4 using form I539. My spouse is employed on a H1B.

Option B: Exit the country and re-enter on a B1/B2 stating that I wish to attend job interviews at Point-of-entry. I currently have a valid B1/B2 visa stamped in my passport as well.

 

I'd like to choose an option that makes it easier for me to start working once my next employer applies for an H1B.

 

I understand Option A means I have to wait for the H1B to be approved and then start employment, subsequently also revoking the CoS to H4 if still in process by then.

 

The more interesting situation is Option B and I'd like an expert opinion on whether H1B portability rules apply or not. I exit the country when my previous H1B employment finishes, and re-enter on B1/B2. I never go out of status. My H1B petition remains valid till 2016 and the petitioner doesn't revoke it immediately - that's what they tell me. Under H1B portability rules, say I stepped out of the USA, returned on a B1/B2, in 2-3 weeks my next employer applies for an H1B and gets a receipt, can I request CoS from B1/B2 to H1b and start working?

 

The AC21 rules in this regard say:

In order to qualify for the portability rule, an H-1B holder, under the qualifications specified byINA 214(n)(2), must be an individual:

1. who has been lawfully admitted into the United States;

2. on whose behalf an employer has filed a non-frivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and

3. who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.

I seem to be fulfilling all the criteria. Can I start work as soon as the new H1B petition is filed? I of course understand the risks of such a petition being denied putting me out of status from the date of filing.

 

Thank you!

The moment you stop working for current employer you lose your H1B status whether employer revokes your H1B petition or not. If you enter in B1/B2 visa and new employer files for a COS to H1B you can start working for new employer only after approval. AC21 does not apply in this case.

[I Me Myself]

how easy or difficult is it to transfer from h4 back to h1.

[jairichi]

how easy or difficult is it to transfer from h4 back to h1.

If you find a good employer and all documents are good then it should not be a problem.

[konichiwa]

Forum members,

So I finally decided to resign from my current job and here is a plan I wanted to run by the more knowledgable folks:

 

a. Apply for Change of Status from H1B to B2 one day after the last day in status (last working day) on H1B. I stay in legal status from the day I file for CoS.

 

b. I have a couple of offers but haven't made a decision yet. So assuming I accept one of those offers and the new employer starts a H1B petition, we are talking about a gap of 20-25 days to approval (gap in employment - not legal status, mind you).

 

c. With the new employer I request for Consular Processing. Once the I-129 gets approved, I leave the USA and get a H1B stamp for the new employment.

 

My question here is that is it correct to assume

1. When I leave the USA, my CoS application (I539 H1B->B2) is automatically abandoned?

2. Because I was in legal status till the time I left the country and re-enter on a new visa stamp, I'm never considered out-of-status?

 

Grateful in advance for a correct answer. Thank you.

[jairichi]

Forum members,

So I finally decided to resign from my current job and here is a plan I wanted to run by the more knowledgable folks:

 

a. Apply for Change of Status from H1B to B2 one day after the last day in status (last working day) on H1B. I stay in legal status from the day I file for CoS.

 

b. I have a couple of offers but haven't made a decision yet. So assuming I accept one of those offers and the new employer starts a H1B petition, we are talking about a gap of 20-25 days to approval (gap in employment - not legal status, mind you).

 

c. With the new employer I request for Consular Processing. Once the I-129 gets approved, I leave the USA and get a H1B stamp for the new employment.

 

My question here is that is it correct to assume

1. When I leave the USA, my CoS application (I539 H1B->B2) is automatically abandoned?

2. Because I was in legal status till the time I left the country and re-enter on a new visa stamp, I'm never considered out-of-status?

 

Grateful in advance for a correct answer. Thank you.

1. Yes.

2. That is correct.

[konichiwa]

1. Yes.

2. That is correct.

Gracias!