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Jen Marie, Esq.
Jen Marie, Esq., Immigration Attorney
Category: Immigration Law
Satisfied Customers: 5221
Experience:  She has worked on all types of U.S. Immigration cases since 2007.
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I am currently on F-1 OPT (expires July 2015) and my H-1b case

Customer Question

I am currently on F-1 OPT (expires July 2015) and my H-1b case just got picked in the lottery. It is not approved yet.
The situation is that I would like to go back to graduate school for a Masters program. Should I ask my employer to withdraw my H1b now or until the h1b petition is approved?
If they withdraw it, how long would it take to be in effect? Should I be safe to get my new I-20 from my new institution and start school in August with no issues?
If I ask them to withdraw it, would I have to leave the company now or wait until the end of my OPT, in case they need me to stay until then (July 2016)?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Jen Marie, Esq. replied 1 year ago.
Hello, my name is ***** ***** I will be the immigration attorney helping you today. Please give me a few minutes to go over your question and I will be right with you.
Customer: replied 1 year ago.
Sounds good.
Expert:  Jen Marie, Esq. replied 1 year ago.
Hello again. I'm sorry for the delay. When they withdraw the petition depends on you and your preferences. If they wait to withdraw until after October 1, 2016, you may be able to use the petition to be cap exempt depending on when you are ready to work on H1B visa. But the downside is that on October 1, you will automatically be on H1B status and would have to either depart the US and come back on F1 or submit an application for change of status from H1B to F1.If you do not want to deal with any of those issues, then your employer should withdraw the petition now, asap. Withdrawing should could take 1-2 months. There's no problem with you getting a new I-20 and starting school in August. Whether they withdraw the petition now or later, you would not be on H1B status until October 1. If you ask them to withdraw, legally there's no reason why you would have to leave the company now instead of waiting until OPT expires. That would be up to them. H1B and OPT are two separate things and one does not affect the other in this case. Good luck to you during this process and I hope this answer has helped you!If you are not satisfied with my answer or if I did not understand your question correctly, please ask me for clarification and I will be glad to clarify. Your satisfaction is my goal. Please kindly remember to issue a POSITIVE RATING now before you leave this page by choosing from the ratings. This is very important since it is how I receive credit for my service from what you paid. This question will NOT close after you rate me even though it says "To Finish..". So after rating me, feel free to ask me any follow up questions at no additional cost . Any bonus you wish to provide will be very appreciated.If you have other NEW questions in the future, you can make sure that I answer it for you if you start your new question post with the words "FOR JENNIFER " or write it in the Subject Line.
Customer: replied 1 year ago.
Thank you for your answer.I have a few follow up questions:1. Does it matter if the withdrawal gets sent to USCIS before the H1-b gets approved or after it gets approved? In both cases before October 1st.2. When the withdrawal request is sent to USCIS, how would I know that the application was withdrawn? Is it automatically withdrawn or do we get a notice from USCIS?3. What should I do while waiting for the withdrawal? Should I ask my DSO to transfer my SEVIS to the other school? Or should I wait until the withdrawal is approved to do that?4. Another question, is it possible to convert my H1-b change of status to consular processing? I am wondering if my employer agrees that I go back to school this year and have the same H1-b used after I finish my other program, would that be possible by converting it to consular processing? Please keep in mind that I would not use any time from my H1-b since I would start my new program in August.Thanks!
Expert:  Jen Marie, Esq. replied 1 year ago.
1.If the withdrawal arrives there is a chance the H1B will not be adjudicated and therefore your status will not automatically change on October 1st. If it it processed after the H1B has been adjudicated, your status will change to H1B on October 1. 2. They will notify your employer if and when it is withdrawn. 3. You can already transfer your SEVIS if you'd like. 4. Your employer can attempt to send an amendment on form I-129 requesting consular processing. There is no guarantee that it will be processed. I hope this helps. Hopefully I have earned your positive rating. Best of luck.
Customer: replied 1 year ago.
Thank you for your response.Could you please clarify the first answer?
Customer: replied 1 year ago.
Does it mean that if my employer submits the withdrawal request after the H-1b is approved but before October 1st, I would still not be able to go back on F-1?