Switching from H-1B to F-1 visa status

We recently were informed of a young soon-to-be graduate student who quit her H-1B job in June while waiting for her change of status application to be approved for a start date in graduate school in September of that year. USCIS issued her a Request for Evidence asking for her most recent paycheck stubs.

Current conservative guidance would be for her to maintain her H-1B status up until at least 30 days prior to her start date on her I-20, although this is not what the regulations appear to say. But it is the position we are now taking with clients – maintain your status up until you are granted your new status if at all possible. If your current visa status runs out before you are granted your change of status, be sure not to keep working.

In any event, the young woman’s attorney submitted paycheck stubs for her that only went up until June, about a month after she filed her change of status application. The Request for Evidence was issued in September and she clearly did not have paycheck stubs between June and September. To our surprise, her change of status was approved, despite not being able to submit more recent paycheck stubs. Does this indicate a new softening of USCIS’s position about maintaining status up to the start date? It is hard to tell. It could be an inconsistent decision, or an erroneous decision, or a change of policy or a consistent policy and we were being too conservative.

Despite the happy outcome for this one individual, we continue to advise clients to maintain current status up until the change of status is approved, if at all possible.

Article categories: Employer-Based Immigration Law, Immigration Policy and Legislative Initiatives, Students

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