What If I Don't Want the Change of Status to H1B after its Approval?
Posted Apr 25, 2008
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Changing one's status to H1B often involves a lengthy and somewhat unpredictable process. When a potential H1B employer is subject to the annual cap and the uncertainties of lottery selection, many prospective employees consider alternative processes as backup plans. Most would like to stay in the U.S., potentially with valid employment authorization. Because foreign nationals often address their immigration status issues through multiple approaches, if an H1B petition filed on one's behalf is approved for change of status, the individual may no longer wish to change status due to a shift in circumstances or plans. In fact, such an approval may complicate matters for one who no longer wants the status to be changed. For our MurthyDotCom and MurthyBulletin readers who are affected by this situation, we explore some of the common scenarios that foreign nationals and their employers encounter and possible ways to overcome the approved change of status when it is no longer desired.
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Employee Unaware of Approved Change of Status to H1B
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One typical situation about which we at the Murthy Law Firm receive inquires involves a prospective employer filing an H1B petition for change of status on an individual's behalf, with a start date of October 1st. A beneficiary is often in L-1 (or other nonimmigrant) status at the time of filing, which would take place on the previous April 1st. After the April filing, the beneficiary does not receive any communication from the prospective H1B employer. Thus, s/he assumes that the H1B petition was rejected in the lottery, or decides simply to continue in the L-1 (or other nonimmigrant) status. Therefore, the individual continues the L-1 employment (or otherwise acts in a manner consistent with the prior status) beyond the October 1st start date. Then, via some method, the individual learns that the H1B was approved for a change of status, effective October 1st. Sometimes this news comes as a call from the H1B-petitioning company, explaining that contact was not made earlier because there was no project on which the person could begin. Some employers incorrectly think that, by holding onto approvals, they delay the H1B status change and related obligations for both themselves and these employees.
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In a situation such as this, the status was changed and the individual was supposed to start the H1B job, effective October 1st. Any work for the L-1 employer after the change-of-status approval was no longer authorized. When there are extended delays and violations, the option of simply starting work with the H1B employer may be available, but, depending upon the exact situation, as explained below, it is best to clear any doubts regarding the individual's status. This is often accomplished by traveling outside the U.S. and returning in the desired status.
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While an individual in this situation may have been out of status for a number of months, s/he normally is not considered to be "unlawfully present" in the U.S. The reason for this is that s/he has an unexpired Form I-94, both from the L-1 employer and the H1B employer. (The term "unlawful presence" is a legal term with legal liabilities that apply. There is a difference between being "out of status" and being "unlawfully present," with different legal obligations. For additional information, see the MurthyDotCom glossary entry for "unlawful presence"). In many of these cases where status is changed but the individual wishes to remain in a prior status, the safest course of action is to leave the U.S. and return in the preferred status, so that there is no doubt as to one's status. This results in the issuance of a new I-94 card at the Port of Entry, in the desired status.
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Employee Has Multiple H1Bs with Different Employers for Change of Status
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Another common scenario involves a prospective employee who is being sponsored by multiple employers / petitioners for change of status to H1B. In such a situation, one may have multiple I-94s issued for the same start date of October 1st of any given fiscal year. In such a case, the employee simply has to decide for which employer s/he wants to work. Once the employment is begun, the individual must maintain status according to the terms of the specific H1B petition. Concurrent employment may be possible in some cases, but it requires a filing with the USCIS to that effect and should be analyzed separately. Return to a "dormant" H1B petition may also be possible if there are multiple H1B approvals, as explained in our May 3, 2002 article, Dormant H-1 Petitions Remain Valid, available on MurthyDotCom.
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F-1 OPT with H1B Pending Now Wants 17-Month OPT Extension
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Yet another variation that occurs involves F-1 students who have job offers. The prospective employer of an F-1 student normally has filed an H1B petition requesting a change of status for that F-1 student. The parties now want to take advantage of the April 2008 option announced by the USCIS to utilize the possible 17-month OPT extension provision. The employer needs to withdraw the H1B petition in order for the student to continue in F-1 status. Once the status is changed from F-1 to H1B, the individual would no longer be able to extend the OPT period, even if the H1B petition is approved for the future start date of employment. However, before withdrawing the potentially very valuable H1B petition, it is best to discuss the advantages and disadvantages with a qualified immigration attorney.
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Conclusion
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The scenarios presented in this article, with the H1B status approved for individuals who no longer wish to benefit from that status, are far from exhaustive. In fact, there are many similar fact patterns that are simply difficult to predict. Because each situation is unique, it is advisable to seek professional advice from a knowledgeable, experienced immigration attorney before making a decision as to the best course of action.