Going out of USA while is H1-B is under process

A

anisanis

Registered Users (C)
I am going on vacation (Dec 29-Jan19, 2003).

My status is as follows:

Officially I graduated with MS in Civil Engineering in May 2002. I am on OPT now and it expires Feb 14, 2003. My company applied for H1-B in September 2002. It might arrive in Dec-January. Another point is I have multiple entry visa (F1) until June 27, 2003 and my I-20 has been signed for travel purposes on the same page it was signed for OPT but my I-20 does not say I have already graduated (May 2002). I have letter from employer saying H1-B is under process.

Now my questions are

1) When I come back from vacation (Jan 19, 2003) will it make any problem? I am afraid they might say you are not going back to school any more so why do u need to enter USA, also your OPT is expiring.


(**OPT expires Feb 14, 2003; Multiple entry F-1 visa until June 27, 2003, but I have letter from employer saying my H1-B under process)

2) If by this time (I will leave on Dec 27, 2002) H1-B arrives can I still use F-1 visa for re-entering. I don’t want to use H1-B because it requires background check which takes 2-3 months.

Please help me out with some information. I appreciate your help

Thanks
Anis
 
If you travel and re-enter on F1, then your change of status application to H1B is voided. The company will have to file another H1B petition, or you will have to leave the US once again (after you enter on Jan 19, 2003) and re-enter with a H1 visa stamp.

Once your H1 is approved, everything connected to your F1 status is gone forever. This includes EAD based on OPT, F1 visa stamp, I-20 etc. You cannot re-enter on F1. By the way I-20 does not state that you have graduated, only that the school official endorsed the fact that you are applying for OPT post-completion of studies (assuming you will indeed graduate).

Since you are very close to OPT expiration, and the company is unlikely to go through the hassle of appying another H1 for you, it is very hard to avoid going to the consulate for H1 stamping. Not everyone is subjected to the security check. If your company does not have product deadlines etc, then they might feel it is OK if you are stuck for sometime in your home country (they dont have to pay you for the time you are outside the US).

Also consider premium processing to get the H1 before you travel.
 
"If you travel and re-enter on F1, then your change of status application to H1B is voided."

Hi Raj..actually I had the same comments from international advisor. This was his reply

"

Mohammad,

Greetings. Am glad to hear about your H-1 visa application. Unfortunately, though, you cannot leave the country and return on F-1; if you do, your H-1 will be canceled. In fact, if you leave the country
while an immigration petition is pending, the petition will be considered abandoned.

So, if you really want to go home, make sure you obtain the H-1 visa status first; then plan to spend some time home waiting for the U.S. Embassy to do the background check. I know it's very
inconvenient, but that's the way things are at this time.

Please let me know if you need more information.

Kind regards,

DM
"

But the confusion I have on this comment

"while an immigration petition is pending, the petition will be considered abandoned."

H1-B is a non-immigration visa.. So advance parole or re-entry those things dont apply for it. Then what is the rule for people who have to go out of USA while H1-B is under process?

Please give me more info about it.

Thanks
anisanis
 
Could be there is a typo in that communication you received from the international advisor. You can confirm that with him/her. Very generally speaking, any petition that you submit to the INS is abandoned when you leave the country, both nonimmigrant ones like change of status and immigrant ones like advance parole.

When your employer submits the I-129 petition, there are two things that are being requested from the INS. First, permission to employ you, and second since you are currently in F1 status, a change of status to H1B. The same form is used for both. The INS could approve the first without the second in some cases, but not the second without the first. When you leave the US while the case is under process, the change of status portion is abandoned. Now this does not mean that your entire H1B petition is abandoned, as the INS approval to work is still valid (if it comes through). You will have to get the approval form sent to you through mail to your overseas address, then get a new H1B visa, and then re-enter. Upon re-entry you will get a new I-94 card that would state H1B. It is this card that allows you to work. What happens if you try to reenter on F1 but the petition is still pending? You get a new I-94 that has an F1 on it, and since the change of status portion of the petitition was voided, you are in F1, and therefore cannot work. Basic idea is that for changing status, you first need to be in some valid status, and that is not possible if you have left the US.

Hope this helps. Which consulate by the way?
 
Hi Raj

Your advice was great help. Thanks a lot. I am working with a civil Engineering farm in Oaklnad, California and wanted to visit home (Bangladesh).
NOw I just have to wait for H1B and think about vacation later.

Thanks again
 
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