H1B (layoff) -> F2 -> F1

[skrish10]

Hi,

 

I came to US in August 2010 with a F1 visa and graduated with a Masters degree in May 2012. I worked in my OPT period for 1 year (till 2013) and I am currently working in H1B (cap exempt) visa valid till Oct 2015. My current positions funding is getting over so I was given a layoff notice and my last date is April 10th 2015. I have been searching for jobs and no luck yet. Have given a couple of interviews and waiting for results but no real hopes in them. I recently got married and my wife is in her F1 visa (OPT). Her employer has filed for H1B (Cap) on April 1st 2015. I am thinking of filing a Change of Status (COS) as F2 on her visa before April 10th so I can stay legally in the US. 

 

In this situation I have the following questions regarding my status.

 

Once COS to F2 is filed.

 

   i) how long does it take to approve? 

 

   ii) Before F2 is approved, 

 

      If I find a new employer to file an H1B petition (cap exempt) , 

          a) Can the H1B transfer be made ? 

          b) Am I eligible to work from the day the petition is filed or should I wait till its approved?  

      If I don't find any job offer, 

          a) Can I shift to F1 by applying for another Masters? 

          b) If I get the I20 before F2 is approved, Can I file ask the university to file for COS to F1 and also send an application to USCIS requesting to cancel my COS to F2? 

          c) Do I need to go out of country and get a new stamping? 

 

   iii) After F2 is approved, 

   

       If I find a new employer to file H1B petition (cap exempt),

          a) Do they have to do it as a new H1B petition? 

          b) Am I eligible to work from the day the petition is filed or should I wait till its approved? 

          c) In this case, do I need to go out of country and come back in with a new stamp? 

       If I don't find any job offer,

          a) Can I shift to F1 by applying for another Masters? 

          b) What are the likelihood that my F1 will get approved? 

          c) Do I need to go out of country before joining the course? 

 

Answers to these question will help me a lot in making a decision about my future i.e whether to be in F2 or F1 and when to file these applications.It will be really useful, if people can shed some ideas on how to handle this situation in a better way and a long term solution. 

 

Thanks

[wiweq]

I was in similar situation in 2011.

i) Its takes 2-3 weeks to get receipt and 2-3 months for approval

 

Before F2 is approved:

ii) On the day of layoff, without any second thought file F2 using COS form I539.

a. If during the F2 processing you get a job, ask them to file H1b in PP. Once H1b is approved (and F2 is not approved), you would send the H1b approval with F2 receipt to USCIS with an application to cancel COS to F2 stating you already have got legit visa status. They will cancel COS to F2 processing and sent you receipt. Call to USCIS to get the address.

b. Because your F2 is not approved, it would be considered as H1b extension (transfer iow). You should be eligible to work on receipt. 

.

a. Yes, you can go for another masters. No OPT allowed this time. You can do only one OPT for same level of education.

b. You don't need to leave USA. If F2 processing is still going on you need to use H1b to F2 COS receipt to file F1 COS. This receipt along with your last H1b pay-stubs shows your legal status in US while filing COS to F1.

c. You don't need stamping if staying in USA. Visa stamping is needed only to enter in USA (for Indian nationals).

.

After F2 approval:

a. Employer will file cap exempted H1b for you with COS F2 to H1b. 

b. You would be eligible to work only after approval not on receipt. Ask them to file H1b in PP. Earlier approval, earlier eligibility to work. 

c. No need to leave US, again, Visa is needed to enter in US. As long as you are getting new I94s with approvals, you are good.

If you maintain and proof your current legal status, you can cos to F1, no need to leave USA. 

[royxp]

On 4/2/2015 at 8:37 AM, wiweq said:

I was in similar situation in 2011.

i) Its takes 2-3 weeks to get receipt and 2-3 months for approval

 

Before F2 is approved:

ii) On the day of layoff, without any second thought file F2 using COS form I539.

a. If during the F2 processing you get a job, ask them to file H1b in PP. Once H1b is approved (and F2 is not approved), you would send the H1b approval with F2 receipt to USCIS with an application to cancel COS to F2 stating you already have got legit visa status. They will cancel COS to F2 processing and sent you receipt. Call to USCIS to get the address.

b. Because your F2 is not approved, it would be considered as H1b extension (transfer iow). You should be eligible to work on receipt. 

.

a. Yes, you can go for another masters. No OPT allowed this time. You can do only one OPT for same level of education.

b. You don't need to leave USA. If F2 processing is still going on you need to use H1b to F2 COS receipt to file F1 COS. This receipt along with your last H1b pay-stubs shows your legal status in US while filing COS to F1.

c. You don't need stamping if staying in USA. Visa stamping is needed only to enter in USA (for Indian nationals).

.

After F2 approval:

a. Employer will file cap exempted H1b for you with COS F2 to H1b. 

b. You would be eligible to work only after approval not on receipt. Ask them to file H1b in PP. Earlier approval, earlier eligibility to work. 

c. No need to leave US, again, Visa is needed to enter in US. As long as you are getting new I94s with approvals, you are good.

If you maintain and proof your current legal status, you can cos to F1, no need to leave USA. 

We are in the similar situation but a little different. I am on OPT STEM (expiring May 10) and got selected for H1B to get the cap gap extension. My wife got laid off on her H1B with the last date of March 20.  We are considering to change her status to my F2 and is filing i 539 form before her H4 gets approved to avoid leaving US. Could you help with some question of i 539 form.

Part 3 1. I/We request that my/our current or requested status be extended until (mm/dd/yyyy):

Should we enter the expiration date of my OPT STEM, as of May 10?

2.a. Is this application based on an extension or change of status already granted to your spouse, child, or parent? YES/NO

Is my OPT STEM extension considered as an "extension" here?

Thank you!