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Ask Guillermo J. Senmartin, Esq. Your Own...
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 109029
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Hello I got laid off 3 weeks ago and my current status is H1B.I

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Hello I got laid off 3 weeks ago and my current status is H1B.I am actively looking for a job and have several prospective employers who accept "H1B transfers".I have also secured an 1-20 requesting change of status to F1(Intend to persue Masters program on starting Aug 28th 2013 and i am in the process of putting the application together.Although i would take on a job first rather than going back to school but want to maintain status and hopefully i can change back to the H1B status upon finding new job.This are my questions.

1 Should I indicate that I was laid off and actively looking for a job to justify the number of days past after been laid off?

2 Do I need to attach termination letter and pays stub for an F1 COS application?

3 I dont intend to leave the country since classes start in Aug is this recommended?

4 Would you provide a sample letter that i need to attach as my personal statement.

4What if i get a job after filling the COS to F1 and adjudication has not taken place can i withdraw the application to facilitate H1B COS or is the last petition becomes valid by default?
.My termination letter states 2nd July but i received a paystub on 15th July for my balances and yet to receive Severance Pay end of July.Should i consider to include either of this or what would you recommend?

Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. I just ask for two things: 1) Before you sign off, please remember to rate me positively as that is the only way that I am paid and your question does not close after you rate me so I can still answer additional questions without additional charge if you have follow-ups even weeks or months later; and, 2) IF I have bad news for you, please remember I am only the messenger. When you rate me, it is my service to you that you rate, not whether the news is good or bad. I will try my best to give you a solution, but sometimes the law does not have a good one.

 

Are you saying that you did not apply for the change of status BEFORE you were laid off? Are you thinking that you have a "grace" period?

Customer: replied 4 years ago.

Yeah i did not apply before i was laid off i understand the law has no defined stipulated amount of time as from when one is aid off.But again i am aware there is no grace period but want to have this done before expiry of 30 days and i didnt have any notice

The problem is that you cannot have even a one day gap. You will have to prove that you were covered until the time that you filed the I-539. Will you be able to do that? I understand that you may be able to prove up until July 15th, but did you file the I-539 before that time?
Customer: replied 4 years ago.
Ok great I did not have any notice l. From your perspective what options are available

Unfortunately, immigration won't care that you did not receive any notice. Since you are not allowed to have even one day of being out of status, you cannot get back into status unless you have a U.S. Citizen spouse or son or daughter over 21 that petitions for you or unless you win Asylum or similar protection. So other than that the only other possibility through employment to stay is if an employer filed a green card process for you and you could get the PERM approved, the I-140 approved and file the I-485 within 6 months of falling out of status and then you could use the 245(k) provision to excuse the time out of status. Since I assume that you would not qualify in an I-140 category that has a current Priority Date, that would not be a viable option for you.

 

So then the only other thing you can do is find a new H-1B employer or a university to accept you and then leave the U.S. as quickly as possible (never staying more than 180 days out of status) and have that employer or university apply for you to come back. The faster you leave, the easier it would be to convince an immigration officer that your overstay was reasonable and would not happen again.

 

I am truly sorry. I wish I had better news for you. Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

Customer: replied 4 years ago.
Great thank you but we have the option of changing status while I the country and waiting for adjudication while going to school instead of leaving the country and got all my 1-20 and graduate classes starts in two weeks.In addition assuming my scenarios as stated in the questions I asked previously could you please provide a response for each question thank you
How do you think you can change your status if you are already out of status? Who is telling you that you can?
That's what I was afraid of. Someone has given you incorrect information. You need to be very careful because they may be wanting to charge you to do something that cannot be done. If you have even ONE day out of status, all the doors through employment, investment and study close so that you cannot do anything without first leaving the U.S. So no, you do not have the option of changing status to student status from inside of the U.S. if you are already out of status. I am truly sorry about that. If you want me to answer each question for you, I will do that, but please remember to rate me positively because of my service, not because of the bad news:

1 Should I indicate that I was laid off and actively looking for a job to justify the number of days past after been laid off?

You must always state the truth. You do not have to volunteer information if not asked, but whatever they ask you either on forms or verbally, you must tell the truth. But regardless, there is no way to "justify" the days that you have been out of status. The law has no provision to do that.

2 Do I need to attach termination letter and pays stub for an F1 COS application?

That doesn't matter. There is no way that they will say, "Well, ok, that's fine, because it was only a few days you were out of status and because it wasn't your fault, we will let you have student status." That is not going to happen. I am sorry about that but someone is misleading you.


3 I dont intend to leave the country since classes start in Aug is this recommended?

You don't have a choice unless you marry a U.S. Citizen (for love, not papers), or you win Asylum or similar protection. Since you don't have any other choice, then you need to leave and apply from outside.

4 Would you provide a sample letter that i need to attach as my personal statement.

There is no letter that I nor anyone else can provide you that will allow you to stay in the U.S. and change status.

4What if i get a job after filling the COS to F1 and adjudication has not taken place can i withdraw the application to facilitate H1B COS or is the last petition becomes valid by default?

You cannot change status to anything else since you are out of status.

My termination letter states 2nd July but i received a paystub on 15th July for my balances and yet to receive Severance Pay end of July.Should i consider to include either of this or what would you recommend?


That will not help you. At best, XXXXX XXXXX claim to have been in status until July 15th since your paycheck stubs will cover you until then, but like I keep saying, even ONE day out of status is enough. There is no forgiveness mechanism to allow you to change status.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
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