Immigration Issues/F1 to H1B and travel

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Question
My employer wants to process H1B for me, and the lawyer says that he would prefer if I go back to my Home country and apply for the change of status there and get my visa stamping done. I am presently on opt( F1) and I am anyway planning to go to my home country in next 2 months. He says there are 2 options either there is status adjustment or consular processing, and suggested me for the consular processing. My qs is

1. Is the element of risk high for getting denied in consular processing in home country? I am a management professional and have USA degree, working with an MNC, and not under the payroles of any consultant.

Answer
Hi,

If H1B is filed requesting consular processing (instead of change of status), after petition approval by the USCIS you must obtain H1B visa stamp at a U.S. Consulate (normally in your home country) and H1B status will be activated when you enter the U.S.

If H1B petition filed with the USCIS requests change of status, you will automatically be in H1B status upon approval as this will have been the "latest action" by the USCIS. You will not be required to depart the U.S. However, if you do depart the U.S. for any reason after filing of H1B petition, you will need to be issued H1B visa stamp (again, normally in your home country) in order to enter the U.S. since the purpose of your entry will be employment with the H1B employer.

The probability of being issued the H1B visa stamp by the Consulate are high, based on the factors mentioned in the last sentence of your email.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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