Navigating Layoff: How to Transition from H1B to F1 and Back to H1B Successfully

On the journey of finding a job, it's not uncommon for either us or those around us to encounter situations of being laid off. This is especially concerning for those holding H1B visas, as failing to secure employment within the grace period can lead to losing H1B status. In our previous article, we covered how to transition from H1B to F1 student visa status. This article will dive into how to successfully switch back from an F1 student visa to H1B. Follow these detailed steps and practical guidelines to ensure your legal stay and work status in the United States.

Transitioning from H1B to F1 Student Visa

Once you receive a layoff notice, you typically have a 60-day grace period to adjust your status. During this period, it’s crucial to act quickly:

1. Apply for Admission: Find and apply to an accredited U.S. school to obtain an admission letter and an I-20 form.
2. Submit Form I-539: Submit Form I-539 to the United States Citizenship and Immigration Services (USCIS) to request a change to F1 student status. Required documents include your I-20 form, personal information, proof of current H1B status (such as the I-94 arrival/departure record), and the application fee.
3. Await Approval: After submitting Form I-539, wait for the USCIS decision, which could take several months. Ensure you maintain lawful status during this time.

While in F1 Student Status

Once you have successfully transitioned to F1 status, you are legally allowed to continue studying in the U.S. During this period, your H1B status will be temporarily inactive but not canceled, and it will not count towards the six-year H1B limit.

Important Considerations:

• Maintain a Good Academic Record: Attend classes regularly and maintain a satisfactory academic performance.
• Understand CPT/OPT Opportunities: Explore opportunities available under F1 status, such as Curricular Practical Training (CPT) and Optional Practical Training (OPT).

Switching Back from F1 Student Visa to H1B

When you wish to switch back to H1B to continue working, you will need to secure a new employer and proceed with the H1B transfer application. Here are the detailed steps:

Step 1: Secure a New Employer

While on F1 status, actively seek job opportunities and ensure the employer is willing to sponsor your H1B transfer.

• Utilize platforms like LinkedIn, job portals, and career fairs to find job opportunities.
• Prepare your resume and cover letter and participate in interviews.
• Ensure that your prospective employer understands the H1B transfer process and is willing to file the application.

Step 2: Employer Files H1B Transfer Application

Your new employer must file an H1B petition (transfer) on your behalf. The good news is that this process does not require re-entering the H1B lottery.

Documents Required from the Employer:

• Company Information:
  • Company name, address, and contact information
  • Federal Employer Identification Number (FEIN)
  • Business license or registration proof
• Job Description:
  • Detailed job duties
  • Required educational qualifications and experience
  • Job location
• Labor Condition Application (LCA) Approval: An LCA approved by the U.S. Department of Labor
• I-129 Supporting Letter: Explanation of the need for the employee and how they meet the job requirements

Documents Required from the Employee:

• Personal Information:
  • Passport copy (including visa pages and I-94 record)
  • Previous H1B approval notice (Form I-797)
• Education and Qualification Proof:
  • Degree certificates and transcripts
  • Professional certifications (if applicable)
• Employment Verification:
  • Reference letters or employment verification from previous employers
• Current Status Proof:
  • Current F1 visa status proof (e.g., I-20 form)

Step 3: Application Fees (Subject to Variation)

The fees for H1B applications vary, but generally include:

• Basic Application Fee (Form I-129): $460 - $780
• Fraud Prevention and Detection Fee: $500 (applicable for initial and transfer applications)
• ACWIA Education and Training Fee:
  • $750 for employers with 25 or fewer employees
  • $1,500 for employers with more than 25 employees
• Premium Processing Fee: $2,805 (optional, for expedited processing)

Step 4: Application Process

1. Submit LCA: The employer submits the LCA to the U.S. Department of Labor and awaits approval, typically within seven days.
2. Submit Form I-129: Once the LCA is approved, the employer files Form I-129 and supporting documents with USCIS.
3. Wait for USCIS Approval: The USCIS reviews the application, which can take several months. Premium processing offers a decision within 15 days.
4. Receive Approval Notice: Once the I-129 is approved, the employee can start working for the new employer under F1 status while waiting to switch back to H1B.

Following these steps, you can successfully transition from H1B to F1 status and then back to H1B. Ensure that each step is legally compliant, and if in doubt, seek advice from an immigration attorney for a smooth process.

Frequently Asked Questions:

What Happens to the H1B Status When Switching to F1?

When an H1B holder changes to F1 status, the H1B status temporarily becomes inactive but is not canceled. This means you do not need to go through the lottery again when switching back to H1B.

Does the F1 Period Count Towards the Six-Year H1B Limit?

No, the time spent in F1 status does not count towards the six-year H1B limit since F1 and H1B are separate visa categories. Therefore, your six-year H1B period is paused while on F1 status.