2

I have a question about whether it is permissible to apply for an F1 visa while being sponsored for a cap-exempt H1B visa. I am a degree-holder who studied in the U.S. for 4 years on a F1 visa, graduated, and then worked for an additional year at a non-profit during my post-completion OTP. After completing my OTP, I left the United States.

My (former) employer has agreed to sponsor me for an H1B visa, and they have been preparing my H1B petition but have not filed yet. During this time, I have applied for post-baccalaureate studies at an U.S. university, and I've gotten accepted as a (full-time) student. Now I'm a little unsure of my options, and I would like your advice.

Ordinarily, one would apply for a new F1 visa in order to come to the U.S. to study. However, my (former) employer is already in the process of sponsoring me for an H1B visa (although they have not filed my petition yet). Thus, I have the following questions:

  1. Is it permissible for me to arrive in the U.S. on a F1 visa, and then 'switch' to an H1B visa once my (former) employer files, and successfully sponsors me for an H1B visa?
  2. If I apply for an F1 visa, would I jeopardise my F1 visa application due to existence of my H1B sponsorship (whether filed or not filed)? I understand that an F1 visa applicant must demonstrate 'non-immigrant intent,' which an existing H1B sponsorship might call into question.
  3. Likewise, would I jeopardise my H1B sponsorship if I apply for (or obtain) an F1 visa while I have an active H1B sponsorship, or petition? My H1B petition is for full-time employment, which the existence of an F1 visa might call into question.

My overall goal is to work in the U.S. under the auspices of my H1B visa, while studying part-time for my post-baccalaureate studies. My post-bac. is at a professional school (i.e. 'night school') for working professionals, so I am not worried about actual conflicts between work and studies.

Here are some additional remarks for context:

  • My employer has began the process of preparing my H1B petition since September, but their bureaucracy is very slow. I believe they will only be able to file the petition with the U.S. government sometime around mid December, or even early January.
  • I hope to arrive in the U.S. in time to start my post-bac program by mid January. Although an H1B visa permits both full and part-time study, I am not convinced that my (cap-exempt) H1B petition will be filed in time for me to receive the visa by January.
  • That is why I want to apply for my F1 visa as an 'ordinary' student, arrive in time to begin my studies on January, and then 'switch' to an H1B visa once my (former) employer successfully sponsors my petition. This seems like the only way I can obtain permission to enter the U.S. in time for the beginning of my studies.
  • However, I am not sure if my wish is legally permissable, given the above questions.

I hope my questions make sense. Thank you very much for your help!

2 Answers 2

2

Is it permissible for me to arrive in the U.S. on a F1 visa, and then 'switch' to an H1B visa once my (former) employer files, and successfully sponsors me for an H1B visa?

Yes. This is called a "change of nonimmigrant status." You don't actually get a visa in your passport, though, so you will have to get one the next time you go abroad. Or, you can go abroad, get the H-1B visa, and reenter in H-1B status.

If I apply for an F1 visa, would I jeopardise my F1 visa application due to existence of my H1B sponsorship (whether filed or not filed)? I understand that an F1 visa applicant must demonstrate 'non-immigrant intent,' which an existing H1B sponsorship might call into question.

I think this is fine, but I don't know for sure, so do keep looking for other opinions. Nonimmigrant intent is really supposed to be judged with respect to a specific visit; for example a foreign spouse of a US citizen can visit as a tourist despite a plan to immigrate in the future.

Not all US officers are on the same page on that question, though, so you do hear horror stories of people being denied entry for precisely that sort of reason. You are right, therefore, to be cautious; if you can afford to retain a US immigration lawyer you should consider doing so.

Likewise, would I jeopardise my H1B sponsorship if I apply for (or obtain) an F1 visa while I have an active H1B sponsorship, or petition? My H1B petition is for full-time employment, which the existence of an F1 visa might call into question.

Again, I don't think so. People understand that you're not going to be waiting by the mailbox while your H-1B petition is pending. But I don't know for sure, and even if it's totally allowable, you still might have the bad luck of the application being reviewed by someone who uses it as an excuse to refused the application.

1

As @phoog stated, in general your plan should be fine, subject to some caveats. Beware that US visa processing time varies widely depending on your nationality, which consulate you go to, which visa you are applying for, and your individual circumstances. In addition:

You should discuss this plan asap with your employer's H-1B adviser or preparer. You need to decide whether, after entering as an F-1 student, you wish to remain in the US for "change of status" OR leave the US to apply for a new H-1B visa once your H-1B petition is approved.

The advantage of "change of status" is saving a trip, and if the H-1B visa itself would be slow then you save that time for now. The caveats are: On the H-1B I-129 petition itself, your employer must specify that you wish to change your status, and they must include evidence of your current lawful status in the US (ie, the I-94 from your F-1 entry). While the petition is pending you should not leave the US at all. Also on your next trip out of the US you will have to apply for a new H-1B visa to re-enter the US.

One advantage of not doing "change of status" is that there's more flexibility if you need to travel in and out of the US as F-1 first. The caveat is: Before starting the H-1B employment, you must apply for the H-1B visa from outside of the US (leaving the US if you were there already), and the visa itself may take time (as any visa may).

In either case, once you are finally in H-1B status you should also check with your school to ensure your F-1 record is properly ended, even if you continue studying while on H-1B.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service and acknowledge you have read our privacy policy.

Not the answer you're looking for? Browse other questions tagged or ask your own question.