H1B-F1 in Dec 2012 (Questions on valid H1b status )

[toomuchguy]

To the EXPERTS,
This may sound like a cliche but I'm a big fan of the way you guys work with actual numbers then random speculations(Q, Specter etc..u guys are geniuses). I needed some clarification on some questions with regards to my wife's H1B status and would deeply appreciate if you guys could guide us on this matter.

Case Background:

Current Status: She is Working full-time(i.e. full benefits,genuine biweekly pay stubs etc..in short as legit as it gets) on H1B for the last 3 years at a regular (i.e. non-desi-consulting) company in Texas. In addition to working full time, she is currently pursuing part-time (i.e. <= 6 credits per semester) Masters in Computer Science at a reputed university in Texas.

So why this posting: Starting from FALL 2012 onward, she is planning to study fulltime(i.e. take 9 credits). In order to quality for OPT in future, she needs to be a fulltime student for 2 consecutive sems(ie. Fall 2012 and Spring 2013). She will be switching to F1 status sometime in Dec 2012 when we'll visit our home country. However, our main problem/pain point is maintaining valid H1B status during FALL 2012 semester as she will have to do both STUDY and WORK full-time during the FALL 2012 semester. Also applying for CHANGE OF STATUS to F1 is not an option as that might take close to 3-4 months to get approved anyways.

So what's the plan: Take 2 days off every week(days she has to attend clases) for the Fall 2012 semester, resign before leaving for home country and get a fresh F1 visa before getting back. She has enough vacation accrued(i.e PAID TIME OFF) to cover most of this time however she is probably short approx 50-60 hours(essentially LOSS OF PAY OR UNPAID LEAVE...whatever u want to call it). Her employer is OK with this arrangement and is willing to do whatever is necessary to help her.

Questions:

1. Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME
2. Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave?
3. Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview?
4. In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview
5. As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter,if part of this payment comes via her PAID VACATION payment.
6. I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA.
7. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future?

In short, even though our intentions is and has always been to STICK TO THE LAW, we don't want to accidently do anything that will jeopardize our future I-485 application. Hence, it would be much appreciated if you guys could guide us with your valuable feedback on this matter.

Thanks for your time
toomuchguy

[qesehmk]

TMG - since you kissed our butts so well I am going to answer your questions to the best of my ability!! Just kidding ...

First i don't understand if she is already on H1 - what's the point of using OPT? So while you answer that here is what I can tell you...

1. Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME (I absolutely don't see any problem. H1 is dual intent and she can study full time in addition to doing a job. Whether she needs an F1 in addition to H1 can be asked to a lawyer. My guess is she doesn't need an additional F1 since a visa is only meant for entry whereas her I-20 is what allows her status in US).
2. Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave? This is tricky and must be checked with lawyer. What i can say with confidence if she takes maternity, short term disability or even paid vacation - she will still be in status.
3. Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview? Any kind of unlawful presence may get her in trouble. Using voluntary "unpaid" leave may accrue unlawful presence if she doesn't already hold another status such as F1 or even H4.
4. In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview . I don't see why her full paystubs and H1 status matter when she wants to interview for F1. At least that is not an important consideration other than they would like to ensure that she has been in US legally.
5. As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter,if part of this payment comes via her PAID VACATION payment. It doesn't matter at all.
6. I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA. I am sorry - I really haven't understood this concept of why one has to take unpaid leave? Can you please explain?
7. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future? I think already answered above.

To the EXPERTS,
This may sound like a cliche but I'm a big fan of the way you guys work with actual numbers then random speculations(Q, Specter etc..u guys are geniuses). I needed some clarification on some questions with regards to my wife's H1B status and would deeply appreciate if you guys could guide us on this matter.

Case Background:

Current Status: She is Working full-time(i.e. full benefits,genuine biweekly pay stubs etc..in short as legit as it gets) on H1B for the last 3 years at a regular (i.e. non-desi-consulting) company in Texas. In addition to working full time, she is currently pursuing part-time (i.e. <= 6 credits per semester) Masters in Computer Science at a reputed university in Texas.

So why this posting: Starting from FALL 2012 onward, she is planning to study fulltime(i.e. take 9 credits). In order to quality for OPT in future, she needs to be a fulltime student for 2 consecutive sems(ie. Fall 2012 and Spring 2013). She will be switching to F1 status sometime in Dec 2012 when we'll visit our home country. However, our main problem/pain point is maintaining valid H1B status during FALL 2012 semester as she will have to do both STUDY and WORK full-time during the FALL 2012 semester. Also applying for CHANGE OF STATUS to F1 is not an option as that might take close to 3-4 months to get approved anyways.

So what's the plan: Take 2 days off every week(days she has to attend clases) for the Fall 2012 semester, resign before leaving for home country and get a fresh F1 visa before getting back. She has enough vacation accrued(i.e PAID TIME OFF) to cover most of this time however she is probably short approx 50-60 hours(essentially LOSS OF PAY OR UNPAID LEAVE...whatever u want to call it). Her employer is OK with this arrangement and is willing to do whatever is necessary to help her.

Questions:

1. Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME
2. Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave?
3. Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview?
4. In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview
5. As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter,if part of this payment comes via her PAID VACATION payment.
6. I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA.
7. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future?

In short, even though our intentions is and has always been to STICK TO THE LAW, we don't want to accidently do anything that will jeopardize our future I-485 application. Hence, it would be much appreciated if you guys could guide us with your valuable feedback on this matter.

Thanks for your time
toomuchguy

[toomuchguy]

TMG - since you kissed our butts so well I am going to answer your questions to the best of my ability!! Just kidding ... Well, first of all thanks for responding. As much as i wish u hadn't started your response with the above line, its a common practice in USA to say offending things, add 2 words at the end (JUST KIDDING) and assume its OK. Whether u had responded or not, I was planning on spending $200 anyways and get a lawyer's opinion on this matter. Since its our future on the line,my main goal with this post was to get some feedback to ask the right questions during the consultation. Finally for the record, i really think you guys are providing a wonderful FREE service and especially for people stuck in the GREEN CARD HELL(This time take it as a compliment..Just kidding )

First i don't understand if she is already on H1 - what's the point of using OPT? So while you answer that here is what I can tell you...
By Dec 2012, she would be close to using up 4.5 yr H1B time and would need a GC sponsorship(lawyers expense that i would like to avoid and all the related hassle) to be able to continue working at the end of the 6th year. Also in the current market, once she finishes her MASTERS, its much easier to find a new job on EAD/OPT then to get someone to transfer her remaining H1b let alone sponsoring a GC. Assuming OPT would allow her to work for 27 months(including e-verify extension) with no strings attached and since my PD (June 2010) won't be current anytime soon, I don't want her to miss out on good opportunities due to immigration. In short, 2.5 yrs OPT + 1.5 yrs H1b = 4yrs(valid work time) should be good enough to convince potential employers to make an offer.

1. Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME (I absolutely don't see any problem. H1 is dual intent and she can study full time in addition to doing a job. Whether she needs an F1 in addition to H1 can be asked to a lawyer. My guess is she doesn't need an additional F1 since a visa is only meant for entry whereas her I-20 is what allows her status in US).
   F1 is needed so that she is eligible to apply for OPT after she is done.
   
2. Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave? This is tricky and must be checked with lawyer. What i can say with confidence if she takes maternity, short term disability or even paid vacation - she will still be in status.
   
3. Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview? Any kind of unlawful presence may get her in trouble. Using voluntary "unpaid" leave may accrue unlawful presence if she doesn't already hold another status such as F1 or even H4.
   For all practical purposes, this is a scenario that every H1B comes across atleast once when his TAKE TIME OFF > LEAVE ACCRUED(PAID VACATION). What should an H1B do legally to cover his base for the excess portion? Is that considered unlawful presence
   
4. In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview . I don't see why her full paystubs and H1 status matter when she wants to interview for F1. At least that is not an important consideration other than they would like to ensure that she has been in US legally.
   I'm not an expert in this but from what I've read so far, it seems when she apply's for a F1 visa(change of status), the officer would more or less ask for pay-stubs to ensure she followed the law, was paid as per the LCA while on H1B and was never benched
   
5. As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter,if part of this payment comes via her PAID VACATION payment. It doesn't matter at all.
   
6. I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA. I am sorry - I really haven't understood this concept of why one has to take unpaid leave? Can you please explain?
   By UNPAID LEAVE or LOSS OF PAY, I mean the difference between ACCRUED PAID VACATON - DAYS I ACTUALLY WANT TO TAKE OFF. For e.g. Annually, i get 3 weeks(15 days) of PAID VACATION on accrual basis. i.e. on Jan 1st i cannot use-up all the 15 days. Sometime in the middle of the year say June, i have accrued 8 days of vacation and can use it anytime i want. I however need to take 15 days off in June. So now(assuming i cannot borrow from future) my only option is ACCRUED PAID VACATON(8 days) - DAYS I ACTUALLY WANT TO TAKE OFF(15) = -7 days i.e. these are days for which the company cannot pay me. In short, they will run my payroll and generate proper pay-stubs although my paycheck for the month of JUNE will be reduced by 7 days LOSS OF PAY
   
7. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future? I think already answered above.<BR>

[/QUOTE]

[qesehmk]

considering the nuance of 1.5 years left on H1 - it might be worthwhile to spend $200 on lawyers.

However i know there are others on this forum whose answers would be equally good or even better.

TMG - since you kissed our butts so well I am going to answer your questions to the best of my ability!! Just kidding ... Well, first of all thanks for responding. As much as i wish u hadn't started your response with the above line, its a common practice in USA to say offending things, add 2 words at the end (JUST KIDDING) and assume its OK. Whether u had responded or not, I was planning on spending $200 anyways and get a lawyer's opinion on this matter. Since its our future on the line,my main goal with this post was to get some feedback to ask the right questions during the consultation. Finally for the record, i really think you guys are providing a wonderful FREE service and especially for people stuck in the GREEN CARD HELL(This time take it as a compliment..Just kidding )

First i don't understand if she is already on H1 - what's the point of using OPT? So while you answer that here is what I can tell you...
By Dec 2012, she would be close to using up 4.5 yr H1B time and would need a GC sponsorship(lawyers expense that i would like to avoid and all the related hassle) to be able to continue working at the end of the 6th year. Also in the current market, once she finishes her MASTERS, its much easier to find a new job on EAD/OPT then to get someone to transfer her remaining H1b let alone sponsoring a GC. Assuming OPT would allow her to work for 27 months(including e-verify extension) with no strings attached and since my PD (June 2010) won't be current anytime soon, I don't want her to miss out on good opportunities due to immigration. In short, 2.5 yrs OPT + 1.5 yrs H1b = 4yrs(valid work time) should be good enough to convince potential employers to make an offer.

1. Can she study fulltime(i.e. take 9 credit hours) while working FULLTIME on H1B. I know H1B was only meant for working but WHAT IF SHE HAS THE WILL, ACCRUED VACATION AND THE EMPLOYER IS OK WITH HER STUDYING FULL-TIME (I absolutely don't see any problem. H1 is dual intent and she can study full time in addition to doing a job. Whether she needs an F1 in addition to H1 can be asked to a lawyer. My guess is she doesn't need an additional F1 since a visa is only meant for entry whereas her I-20 is what allows her status in US).
   F1 is needed so that she is eligible to apply for OPT after she is done.
   
2. Since she will be in USA during FALL 2012, will she be in valid H1B status if she takes 50-60 hours of UNPAID/LOSS OF PAY leave? This is tricky and must be checked with lawyer. What i can say with confidence if she takes maternity, short term disability or even paid vacation - she will still be in status.
   
3. Somewhere i read that as long as she is taking a VOLUNTARY leave and notifies her employer upfront, it should be OK? The confusing part is "How can she document her need for VOLUNTARY leave"? Is STUDY a good reason or she should mention FOR PERSONAL REASONS? How will this impact her when she goes for her F1 interview? Any kind of unlawful presence may get her in trouble. Using voluntary "unpaid" leave may accrue unlawful presence if she doesn't already hold another status such as F1 or even H4.
   For all practical purposes, this is a scenario that every H1B comes across atleast once when his TAKE TIME OFF > LEAVE ACCRUED(PAID VACATION). What should an H1B do legally to cover his base for the excess portion? Is that considered unlawful presence
   
4. In order to have full pay stubs just before she goes for F1 visa interview, she is planning to take the UNPAID leave earlier in the semester so that any UNPAID/LOSS OF PAY does not show up on her most recent pay-stubs that she will provide for the F1 interview . I don't see why her full paystubs and H1 status matter when she wants to interview for F1. At least that is not an important consideration other than they would like to ensure that she has been in US legally.
   I'm not an expert in this but from what I've read so far, it seems when she apply's for a F1 visa(change of status), the officer would more or less ask for pay-stubs to ensure she followed the law, was paid as per the LCA while on H1B and was never benched
   
5. As far as i know to maintain valid H1B status, a person has to be paid fulltime i.e. paystubs should show PAID FOR 40 hours. Does it matter,if part of this payment comes via her PAID VACATION payment. It doesn't matter at all.
   
6. I'm on H1b and have taken unpaid leave (for the hours i was short) in the past while travelling to home country. This i guess has never been a problem as i was outside USA. I am sorry - I really haven't understood this concept of why one has to take unpaid leave? Can you please explain?
   By UNPAID LEAVE or LOSS OF PAY, I mean the difference between ACCRUED PAID VACATON - DAYS I ACTUALLY WANT TO TAKE OFF. For e.g. Annually, i get 3 weeks(15 days) of PAID VACATION on accrual basis. i.e. on Jan 1st i cannot use-up all the 15 days. Sometime in the middle of the year say June, i have accrued 8 days of vacation and can use it anytime i want. I however need to take 15 days off in June. So now(assuming i cannot borrow from future) my only option is ACCRUED PAID VACATON(8 days) - DAYS I ACTUALLY WANT TO TAKE OFF(15) = -7 days i.e. these are days for which the company cannot pay me. In short, they will run my payroll and generate proper pay-stubs although my paycheck for the month of JUNE will be reduced by 7 days LOSS OF PAY
   
7. However in my wife's case its slightly different as she'll be in the country.? Do u guys see any problems with this affecting our I-485 application in future? I think already answered above.<BR>

[/QUOTE]