Laid Off: Planning to go from H1B - F1B?

Recently many H1-B holders, who have been laid off are having tough time to find employers, who will transfer their H1-B and offer them job. These individuals are now taking the opportunity to go back to school and earn new skills. To transfer from worker visa to student visa, one would have to change their status from H1-B to F1-B.

Here are few things that one should remember if he/she decides to go back to school. To transfer your H-1B to F1-B, one will need recent pay stubs. Generally, USCIS will accept pay stubs dated within 30 days before filing as proof of maintenance of status for the purposes of a change of status/extension of stay petition. If you don't have this, you likely would not be approved to change status in the U.S.

This does not mean that you aren't eligible for an F-1B if accepted into a qualifying program, it just means that the only way to get into F-1B status would be to leave, obtain the F-1 stamp at the consulate abroad, and re-enter. However, an F-1 visa requires non-immigrant intent - the intent to return abroad at the completion of your program. It isn't a dual intent visa like the H-1B which also allows one to migrate to US. If you ever applied for a green card while here on H-1B, this could be a problem for the F-1B application. Even a long time spent here or home ownership here might be problems. So please be careful if you will decide to go this route.

In latter case, if you showed an intent to immigrate to US, you are more likely to get your change of status rejected. Even if your case is accepted as a "change of status" approved, and later sometime if you will decide to get your F1-B visa stamped, there are chances that your visa will be rejected with 221(g) or as a 'Potential Immigrant'.

Of course, applying for F1-B once you have fallen out of status carries it's own issues. If your H-1B has expired or revoked, you probably have been accruing unlawful presence so as to be subject to a re-entry bar and denial.

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