Can I re-enter US with an H1B and an extended B2 status on my file?

[bsb]

Hi,
I had a H1B since feb 2004. On Sept 2006 I filed a I-539 to extend my status to B2 and it has been approved until April 2007. I want to leave to Spain for Xmas next week and come back the 1st week of January because I have been offered a job in the US.
My questions are:
Can I re-enter the country under the visa waiver program ( my country belongs to the program)
If so, can I then file for a new H1B and then go back to my country to pick up my visa?
Am I subject to the cap?

Thanks.

 

[GotPR?]

H1 petition can be filed no matter where you are located, as your employer is going to file, but you can not file it with change of status if you are under VWP.
I don't know why you want to do this with VWP. If you have an offer, why don't you let them file H1 petition with COS today ?

 

[bsb]

Thank you GotPR? for your answer.
What do you mean by "you can not file it with change of status if you are under VWP."?
The reason why I would be doing this under the VWP is because the employer cannot start the filing process until January and I wanted to leave to Spain for Xmas. The only way I would have to return to the US is under the VWP.

I have been told that I leave the US under this circumstances (having a H1B and an extended status B2) I may not be able to return. Is this right? If it is wrong, once in the US, can I file for the H1B with the new employer and NOT being subject to the cap? ( so I will be able to start working right away once my case is approved)

Thanks again for the help. I hope you can answer my questions soon since I got my flight tickets for december 6th...

 

[GotPR?]

I have been told that I leave the US under this circumstances (having a H1B and an extended status B2) I may not be able to return. Is this right?

Who said that ? It is not correct. As far as you have valid visa or eligible to VWP, you can enter the US.

If it is wrong, once in the US, can I file for the H1B with the new employer and NOT being subject to the cap? ( so I will be able to start working right away once my case is approved)

you should be exempt from quota as you already had H1 status before, however, you can not start working upon approval because you are not filing H1 petition with change of status. Changing status from VWP is not allowed. You must travel and reenter the US with H1 stamp before starting your job.

 

[bsb]

Thanks GotPR? for your quick response. It was actually my lawyer who told me that it was a risk to try re-entering the US under the VWP because the BP officer might say that I am lying about my intentions (because of having a h1 before and extended my status with a B2)
So then, if there is no problem re-entering the US, once I file the H1B petition and it is approved, I just need to go back to Spain, get my visa in the Consulate and come back.

If I don´t leave the US and file for my H1 with the new sponsor, it is still a change of status, right? if so, I will need to go to Spain to get my H1 stamp, right?

Thanks again,
bsb

 

[GotPR?]

Thanks GotPR? for your quick response. It was actually my lawyer who told me that it was a risk to try re-entering the US under the VWP because the BP officer might say that I am lying about my intentions (because of having a h1 before and extended my status with a B2)

THat might happen, so that you need to convince officer that you will leave within 90 days.

So then, if there is no problem re-entering the US, once I file the H1B petition and it is approved, I just need to go back to Spain, get my visa in the Consulate and come back.

It is correct that you have to go out of the US and reenter. For visa stamping part, please clarify with lawyer. In general, if you already had valid H1 stamp, you can use it even though the stamp is with previous H1 employer. Probably you do not need new stamp in your case,but just confirm with lawyer.

If I don´t leave the US and file for my H1 with the new sponsor, it is still a change of status, right? if so, I will need to go to Spain to get my H1 stamp, right?

No, VWP is not allowed to change to any other status. That rule is strict. At least, you need to travel before starting H1 job.

 

[bsb]

THat might happen, so that you need to convince officer that you will leave within 90 days.

It is correct that you have to go out of the US and reenter. For visa stamping part, please clarify with lawyer. In general, if you already had valid H1 stamp, you can use it even though the stamp is with previous H1 employer. Probably you do not need new stamp in your case,but just confirm with lawyer.

No, VWP is not allowed to change to any other status. That rule is strict. At least, you need to travel before starting H1 job.

Hi GotPR?
what do you mean by " you need to convince officer that you will leave within 90 days"? In case the officer ask me what are my intentions, should I say that I have a job offer and coming for an interview? I guess having a flight ticket back to Spain within those 90 days would help...
I just don't understand why might I have trouble entering in the US under the VWP, I am not doing nothing wrong...

A second question remains that you misunderstood before. If I don't leave the US now, and that means that I will be under the b2 extended status and not having entered the US under the VWP, once I file my case for the h1b, do I still need to go to Spain to get the stamp?

Thanks again for answering my questions. It is being very helpful.

 

[GotPR?]

what do you mean by " you need to convince officer that you will leave within 90 days"? In case the officer ask me what are my intentions, should I say that I have a job offer and coming for an interview? I guess having a flight ticket back to Spain within those 90 days would help...

Having return ticket is mandatory for VWP. May be OK to answer that you came for interview, but I honestly don't know how officer reacts. If officer feels that you might stay here indefinitely, they can deny the entry. It simply depends on how you tell them not to stay longer than 90 days.
Safer option is if you already have an offer, why don't you take interview now and let them file H1 in Jan ? That way, you donot need to come under VWP in Jan.

A second question remains that you misunderstood before. If I don't leave the US now, and that means that I will be under the b2 extended status and not having entered the US under the VWP, once I file my case for the h1b, do I still need to go to Spain to get the stamp?

OK, if you filed petition now, you can do it with change of status, then you donot need to travel. However, important thing you need to know is if you left the US before decision on COS is made, your COS petition is considered abandoned. Basically, you should not leave until CIS comes back with decision on your COS with H1 petition.

 

[bsb]

Thanks GotPR? for your help. Since my understanding is that my chances to re-enter to the US depends on how the officer reacts it is much safer if I remain in the US until my case is filed and approved.
I just wanted to go home for Xmas, but it seems impossible right now.
Thanks again