If an H1B Change of Status is Not Wanted After Approval13 Sep 2019
Changing status to H1B often involves a lengthy and somewhat unpredictable process. Because of the annual cap and uncertainties of lottery selection, many foreign nationals consider alternative processes as backup plans. As a result, there are a number of situations in which a foreign national may no longer wish to change to H1B status after a petition that was filed on her/his behalf has been approved. Some of the common scenarios encountered by foreign nationals and their employers, and possible ways to overcome approved changes of status when no longer desired, are explored here.
Employee Unaware of Approved COS to H1B
One typical situation involves a prospective employer filing an H1B petition requesting a change of status (COS) for a foreign national who is in L-1 or some other nonimmigrant status at the time of filing. Because of H1B cap limits, the petition is filed in early April, requesting an October 1st start date. After the April filing, the beneficiary does not receive clear communication from the prospective H1B employer. Thus, the foreign national assumes that the H1B petition was rejected in the lottery, or decides simply to continue in the L-1 (or another nonimmigrant) status beyond the October 1st start date. Then, the individual somehow learns that the H1B was approved for a COS, effective October 1st. This news may even come in the form of a call from the H1B-petitioning company requesting that the individual begin work. Some employers incorrectly believe that, by holding on to approval notices, they delay the H1B status change and related obligations for both themselves and these employees. In reality, however, failing to join the H1B employer on October 1st would be considered a status violation, and any work performed for the L-1 employer after this date would be deemed unauthorized employment.
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 United States and return in the preferred status, so that there is no doubt as to one’s status. This ideally results in the issuance of a new, automated I-94 at the port of entry in the desired status. However, as there are risks with travel, it is best to seek proper legal advice from an experienced immigration attorney prior to taking this step.
Multiple H1Bs with Different Employers for COS
Another common scenario involves a prospective employee who is being sponsored by multiple employers / petitioners for COS to H1B. This is allowed, subject to restrictions explained in the MurthyDotCom NewsBrief, H1B Cap Season Reminder: Multiple H1B Filings for Same Beneficiary (25.Feb.2019). If two or more of these petitions are selected for a foreign national in the lottery and then approved, s/he may have multiple I-94s issued with the same October 1st start date. In such a case, the foreign national is free to join any of the employers that received approval notices. Once the employment begins, the individual must maintain status according to the terms of the corresponding approved H1B petition. Concurrent employment may be possible in some cases, that option should be analyzed separately.
F-1 OPT with H1B Pending Wants to Stay in OPT
Yet another variation that occurs involves a prospective employer that has filed an H1B petition requesting a COS for an F-1 student. However, if that job offer falls through or better options become available, such a student may wish to remain in F-1 status. Historically, this preference has been more common for students who qualify for the 24-month optional practice training (OPT) extension. In that event, the employer needed to request a revocation of the H1B petition prior to the H1B October 1st start date. Further, the designated school official (DSO) must request that the student’s status information in the SEVIS system be amended to restore the F-1 OPT status.
The scenarios presented here for MurthyDotCom readers are far from exhaustive. 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.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which was originally published in 2015 and remains relevant.
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