F1->H1B issue

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dboca

Registered Users (C)
Dear friends:

I have the following problem: I live in Windsor, Canada and work in Detroit. I cross the border every day to come to work. I hold an F1 visa on Optional Practical training. My H1B was approved starting January 1st 2003, but I do not have a visa stamp in my passport yet, so consequently I am still entering US on my F1 visa. Is this illegal? Basically one cannot hold two non-immigrant statuses at the same time, but I was wondering whether the F1 visa stamp is still valid until I get an H1B stamp on my passport.

Any insights would be highly appreciated. Thanks a lot.
 
Its not illegal but you need to keep in mind everytime you enter the U.S on an F-1, you are basically on F-1 status, and you are working on F-1 (OPT) status.

You might be ok until your OPT expires, but you have basically invalidated the change of status (from F-1 to H-1) that the INS gave you -(unless you requested consular notification and you didnt get an I-94 attached to your approval letter - in that case the INS didnt actually give you a change of status) You need to get an H-1 B visa and enter on H-1 status. Your H-1 status will not begin until you have done so.
 
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Thanks for your reply. My OPT is not expired, but the incompetent lawyer made my H1B to start before the expiration of the OPT. I thought that the approval of the H1B status automatically invalidates the previous status, as I cannot have two distinct statuses concurrently. That's my biggest concern right now. Of course I will get an H1B stamp asap, but it will take two weeks until my appointment date.
 
You're fine. Basically it means you never activated your H-1 status. See FAQ posting below ( it refers from H4-H1 but the same situation applies from F1-H1 as well).


Q186 What would happen when the condition is from H4 to H1 . Does this mean if we re enter again after having filed for change of status a whole new H1 has to be filed and the previous H1 becomes invalid?
A186 If you enter USA on an H-4 visa after H-1 approval, you ARE on H-4. There are only two ways to convert this back to H-1. Leave USA, get an H-1 visa, reenter on H-1 OR ESSENTIALLY apply for H-1 all over again.
 
You might be ok, if you did not get a new I94 everytime you entered US. The I94 that came with H1 approval is valid for you to enter from Canada for you to be on H1. From the date of approval of H1 you are on H1.
Your F1 OPT is no longer valid. Your H1 should start before expiry of OPT, other wise you will accumulate out of status time.

mgh how does Q186 (and answer) is relevant for a F1 to H1 case like this?
 
The Q/A indicates a way out if a person enters the country on an incorrect status subsequent to issuance of a change of status (its on immigration.com FAQ, so Im assuming the info is valid).

The Q/A applies in the case that a person applies for a change of status (F1->H1 or H4->H1). Petition gets approved w/ change of status. The person goes abroad, and (erroneously) comes back to the U.S showing the older visa (F1 or H4), gets the wrong I-94. In that case the person is on whatever status the POE officer stamped the I-94.

To get back on H-1 status, one needs to enter with an H-1B I-94 ( either through showing H-1 visa or reentering using attached I-94).
 
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