F-1 to H-1B and Maintaining Status

[nixone]

State: AZ

Hello Madam,

My H-1B petition has been approved with the start date Octobet 1.

I am in F-1 visa at the moment. When can I stop going school? In other words, do I need to keep my student status until September 30? My lawyer says I do not have to maintain my student status anymore and I hear different answers from lawyers of my friends (I have not talked to these lawyers directly, but friends told me what they understood).

Please let me know what the law says.

Thank you so much for your time and help.

Sincerely,

Prabat

 

[ImmigAttyLana]

If your petition is approved as a change of status, then you need to maintain valid status through September 30, 2007 otherwise, you are not eligible for the change of status.

 

[nixone]

If your petition is approved as a change of status, then you need to maintain valid status through September 30, 2007 otherwise, you are not eligible for the change of status.

Thank you for your answer. If I remember correctly, it was a change of status. How would I know for sure if it was a change of status? My online status says this:
-------------------
Application Type: I129, PETITION FOR A NONIMMIGRANT WORKER

Current Status: Approval notice sent.

On April 16, 2007, we mailed you a notice that we have approved this I129 PETITION FOR A NONIMMIGRANT WORKER. Please follow any instructions on the notice. If you move before you receive the notice, call customer service.
------------------
I started my master's degree in Jan 2007. I will complete my first semester this May and I will take the summer break. My fall semester does not start until August 27th. It looks like I need to be in status for 1 month and 3 days after summer break. Can I register fall classes until September 30 and drop them all that day? Do I have to attend classes to maintain my status or registering classes will do? I am thinking about relocating to the state where my future employer is located this summer and I do not want to come back to school for 1 month and 3 days.

If I have to attend the classes to maitain my status, I would like to finish the fall semester. In that case, my question for you is, if my employer is ok, can I start my job in Jan 2, 2008 instead of Oct 1, 2007.

Please let me know.

 

[ImmigAttyLana]

The approval notice, when you get it, should have a new I-94 attached to the bottom, if your petition was approved as a change of status.

 

[nixone]

The approval notice, when you get it, should have a new I-94 attached to the bottom, if your petition was approved as a change of status.

What about second part of my question? Maintaining student status and starting work on Jan 2 instead of Oct 1? I would really appreciate if you give me good advice on these matters. I know I am asking for free adivice, you would be blessed for helping me. I am not getting good advice from my lawyer and I wish I had a different lawyer, lawyer like you.

Thanks

 

[ImmigAttyLana]

If your H-1B was approved as a change of status, starting October 1, 2007, then your status automatically converts to H-1B ON October 1, 2007. So, if you do not start working on that date, then you are technically out of status because you are not working pursuant to the approved H-1B petition.

 

[nixone]

If your H-1B was approved as a change of status, starting October 1, 2007, then your status automatically converts to H-1B ON October 1, 2007. So, if you do not start working on that date, then you are technically out of status because you are not working pursuant to the approved H-1B petition.

Thanks for your reply. What about this message in USCIS website:

Must an H-1B alien be working at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

It sounds like if my employer is ok, I can start whenever or even not work at all.

It does not sound practical to maintain my status until September 30 and show up at work next morning. I am in AZ and my job is in NY, how is that possible for me to do? I need to move there, find place to live and take some rest before I can start working. And I have a family to move. There must be some grace period in between switching from one visa type to another visa type, in my case F-1 to H1.

Thank you for your time.

 

[ImmigAttyLana]

Yes, sure, but it should not take you 3 months to move from one state to another (october to january), so yes you can take a few weeks.

 

[nixone]

Yes, sure, but it should not take you 3 months to move from one state to another (october to january), so yes you can take a few weeks.

Thank you so much for your time and reply. You said I can take few weeks. What does that mean? Who decides that few weeks? Dose it mean 30 days? 15 days? Is this rule written somewhere? May I get a link for that please? For F-1 holder, there is 60 days grace period after graduation and it is written clearly in USCIS website. There must be rule/law written about this case too, going from F1- to H1 and grace period?

All I am trying to do is find out for sure if I can start my work in January OR not go to school for 1 month and 3 days (in fall) and still be in status.

Thanks

 

[ImmigAttyLana]

Why don't you talk to your attorney and get the precise information as it pertains to your specific situation?

 

[nixone]

Why don't you talk to your attorney and get the precise information as it pertains to your specific situation?

Well, talking about my lawyer, he is the one who told me that I do not need to keep my student status anymore as my H1-B has been approved and he also tells me that I can start working whenver I want and they company wants (as long as it is after October 1). It can be January 2008 or May be Januray of 2009. He is the company lawyer, not my own lawyer.

His answers are not helping me very much as you and others are saying different.

Thanks

 

[ImmigAttyLana]

It's really unfortunate that this company attorney either does not know the law or is not really working in your best interest to advise you of the consequences. It may be intended in part because the job will no longer be there if you come to join the employer in January and then you will no longer be eligible for a transfer of status since you will not be able to prove you have been maintaining valid status. I cannot speculate since I know nothing of the company or their attorneys but YOU would be well advised to go to the employer site and report for work as soon as possible after October 1 to avoid any possible negative consequences in terms of YOUR own immigration process. There is no such thing as grace period in this case since this is a change of status with a new I-94 which means that on the first date of validity of the H-1B petition you are ALREADY in H-1B status and, as such, you need to maintain valid status. The only way to do that is to be WORKING for the petitioning employer pursuant to the H-1B approval notice. The law is clear in stating that the employer must begin paying employee-stated wage wtihin 30 days of entry or 60 days from change of status application if in the US. Make sure you are equipped with your own correct information when dealing with this employer and their attorneys as I have doubts that they really have your interests in mind.

 

[nixone]

It's really unfortunate that this company attorney either does not know the law or is not really working in your best interest to advise you of the consequences. It may be intended in part because the job will no longer be there if you come to join the employer in January and then you will no longer be eligible for a transfer of status since you will not be able to prove you have been maintaining valid status. I cannot speculate since I know nothing of the company or their attorneys but YOU would be well advised to go to the employer site and report for work as soon as possible after October 1 to avoid any possible negative consequences in terms of YOUR own immigration process. There is no such thing as grace period in this case since this is a change of status with a new I-94 which means that on the first date of validity of the H-1B petition you are ALREADY in H-1B status and, as such, you need to maintain valid status. The only way to do that is to be WORKING for the petitioning employer pursuant to the H-1B approval notice. The law is clear in stating that the employer must begin paying employee-stated wage wtihin 30 days of entry or 60 days from change of status application if in the US. Make sure you are equipped with your own correct information when dealing with this employer and their attorneys as I have doubts that they really have your interests in mind.

ImmigAttyLana,

Thank you for your message and concern of my well being. I really appreciate that. Sorry! took it forever to reply to you, I was way for finals. Yes, the lawyer is new and he is learning and the same time he is trying to help me, so I could finish the degree. He was also going by the rule written in USCIS website about "as long as employer and employee relationship exist, H1-B holder is in status" or something like that. I talked to few more lawyers and some people who got H1-B but did not start for 4 months or 6 months etc. All of them said that as long as the company is ok, I am fine to in later date, which could be six months, a year etc. One thing all of them said is that if I need to transfer to some another company or need to go out of the country and ask for visa, I need to have few latest paystubs. That means, I cannot go out of the country or transfer to another company for few months after I start my job. I am fine with that.

One thing I would like to let you know that the job is there and it will be there when I go in January. So, here is the plan. I am finishing my degree in December and starting my work in January. My lawyer has already received my approval letter and new I-94 which he mailed to me yesterday.

Thank you so much for your time and help. Please keep up the good work.