Dear Changing Status:
Before we address your inquiry, we must note that we are not immigration lawyers. We can offer you our informed opinions, but we are not familiar with the nitty-gritty of the US immigration rules and regulations. You would be well advised to contact the local US INS (Immigration & Naturalization Service) office and/or an immigration lawyer.
We are not sure what your reasons are for giving up the H1 to obtain the F1 for studies, without first converting your H1 to the Green Card (permanent legal resident) status. We would strongly advise you to obtain the Green Card first if you can. Once you have the Green Card, you are free to pursue whatever you wish without any approval or intervention by the US immigration officials.
But you may have other issues. At least one possibility is that you have lost your job for which your H1 was granted. We are quite familiar with this situation. With the current economic downturn in the US, many H1 visa-holders have lost their jobs. The INS is quite aware of the situation as well. The INS officials have made public statements that they would not enforce strictly the requirement that H1 visa-holders must leave the US immediately upon the termination of their job. What it means for individual cases, such as yours, is not very clear. You are prudent in evaluating your options and taking action to ensure that you are in the US on a legal status.
We are not sure if you are familiar with the F1 visa (student visa) process. You can obtain the F1 only if you are offered admission into a full-time program of studies by an INS-authorized college or university. You would know that a school is in fact authorized by the INS by its ability to issue the I-20 form to you. The I-20 is a certificate of eligibility for nonimmigrant (F-1) student status. The I-20 alone is not a student visa; it is the basis for obtaining the F1 visa. Obviously, you can not obtain the F1 just because you intend to study in the US, but because you have an offer of admission by a school in the US. Other requirements for the F1 include a proof of finances and your intention of being in the US temporarily for the sole purpose and duration of your studies.
The INS has been, over a period of time, relaxing the requirement of being outside the US to obtain various types of visas. Not all applicants are required to be outside the country at the time of application. Your international student advisor at your prospective school would be a good source of information, and so would be the INS or an immigration lawyer. If you must leave the country, another option is to drive to Canada since it is closer than Mexico.
So long as you are in the US, you are offered all protections of the US laws. However, once you are outside the country, you are, in many ways, at the mercy of the immigration officials at the US consulate and at the port of entry. It is a risk. The refusal of F1 does not automatically terminate your H1 visa, however you can be subjected to additional scrutiny. The consulate officials and the immigration officials at the port of entry have reasonable leeway in determining whether you should be allowed back into the US. For example, your H1 must be valid despite what it says on your passport; that is, you must have a specific job with a specific employer for your H1 to be considered valid. In case you have lost your job, your H1 is no longer valid to reenter the US.
You must also note that only one visa status is valid at a time. Once you convert to the F1 status, your H1 will no longer be valid.
Dear Mentor:
