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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28202
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I was on F1 -OPT visa then I submitted my change of status

Customer Question

I was on F1 -OPT visa then I submitted my change of status application to F2 which is still pending with USCIS and that is going to take some time to approve becuase these days USCIS is taking 6 plus months. I am getting offer for a academic position and I hope they will file my H1B. Can I apply for premium precessing? Do I need to wait to file H1B till my previous change of status get approved ?
Submitted: 9 months ago.
Category: Immigration Law
Expert:  Judith replied 9 months ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

Can I apply for premium precessing?

Yes, you can use premium processing.

Do I need to wait to file H1B till my previous change of status get approved ?

When does your OPT expire?

Judith

Customer: replied 9 months ago.
My OPT expired on 12/31/2015, and USCIS received my change of status from F1 to F2 on 12/31/2015.
How long premium or regular processing could take?
Thank you
Expert:  Judith replied 9 months ago.

USCIS won't approve your H1B with an extension of stay until your COS is approved. They cannot give you an I-94 on the approval notice if your stay has expired and the COS with extension isn't approved yet.

Premium processing guarantees REVIEW within 15 days. They may issue an RFE after review which then takes them more time to approve the petition.

Regular processing is generally taking up to 5 months but if it is a clear case with direct employment with the petitioner and not being farmed out to vendor or client.

choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 9 months ago.
Not sure what you talking. I'm not on expired status. I submitted my application on 12/31/2015, and my change of status is pending.
Is H1B petition and COS are seperate?
Expert:  Judith replied 9 months ago.

You are confused. Your COS has not been approved so you do not have status.

When a request for EOS and/or COS is pending that is not giving you any status. You have requested F2 status but it is not yet approved.

You are "in a period of stay authorized by the Attorney General" which means you do not accrue unlawful presence and you can stay while waiting for approval but you are not "in status" and able to change status until your COS is approved for the F2 which was filed before your status expired.

The H1B petition has a box to check to request a change of status. It is not a separate form that is filed with the I-129.

Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 9 months ago.
I'm little confused. My F1-F2 COS is pending. So you saying when I submit H1B petition then I need to select change of status.
Does this means I will have two change of status petition with USCIS. One which I already submitted F1-F2 and other which will be my H1B petition? or my new H1B petition override my old F1-F2 COS petition?If this does not override old F1-F2 VOS petition, that means I need to wait 5 months for F1 to F2 petition and then 5 more months for H1B?
Thank you,
Expert:  Judith replied 9 months ago.

Your employer's attorney will know what boxes to check on the petition.

Yes, you have to request a change of status.

You are in a situation called "bridging"

Lawyers are familiar with how to handle these situations so you don't need to worry about it.

Does this means I will have two change of status petition with USCIS. One which I already submitted F1-F2 and other which will be my H1B petition? or my new H1B petition override my old F1-F2 COS petition?
YES
If this does not override old F1-F2 VOS petition, that means I need to wait 5 months for F1 to F2 petition and then 5 more months for H1B?

No the new H1B does not over-ride the pending COS request.

Yes, your COS request takes approx 5 months which will come up while the H1B is filed and pending on April 1st. Regular processing can take as I said "UP TO 5 MONTHS". If it is a clear case of direct employment it can be approved sooner because there wouldn't be an RFE sent out.

You seem to be stressing unnecessarily so far in advance. You don't even know if your H1B petition will be selected in the lottery. You need to take things one step at a time and not be in a panic before hand.

Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 9 months ago.
Let me clarify: My new job will be in academia and I do not need to wait till April 1st H1B filing date. so there is no lottery situation for me.I called USCIS before I submitted my F1-F2 petition and they told me if I want to submit new petition then I can visit local USCIS office and submit new documents and then that will take care of old COS. At that time I was talking regarding J1 visa and now I'm thinking of H1B cap exempt.
Expert:  Judith replied 9 months ago.

If you called the USCIS customer service line you did not speak with an employee of USCIS nor a lawyer.

You spoke with a contractor who reads from a script.

It is not the correct information.

You did not clarify you were offered a position with an institution of higher education not subject to the cap. I would not have any way of knowing that.

So you will just wait for your petition to be approved after filed. However, as I said you cannot get an I-94 unless your COS to F2 is approved because your status as F1 is expired.

Google "USCIS bridging petitions" and you will get lots of hits on this issue and understand I am not giving you incorrect information.

In fact there is a section in the USCIS "Neufeld Memo" on unlawful presence that hits on this topic.

Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

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