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Immigration Issues/F1 OPT and traveling while H1B pending

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QUESTION: Hi Ajay,

I am planning to go my home country(India) with valid OPT (valid until Jan 2013) and same time I have applied for h1. I am working as a full time employee.

My h1 application shows pending.

So, in that case can I able to go my home country in June 2012 for 21 days! Can I able to enter in the United State with valid OPT visa and h1 status pending! If in case h1b get approved than what is the start date of that! If start that is earlier than my return that than can I still able to come on OPT or I have to applied for stamping!

Look forward to hearing from you.

ANSWER: Hi,

You can travel and enter on unexpired F1 visa as you are maintaining F1 status with OPT.

If you are subject to the H1B visa cap (most initial H1B petitions are subject to the visa cap), the employment start date noted on the H1B approval notice will be October 01, 2012. As you are planning on entering the U.S. before the H1B takes effect, it is OK to enter on unexpired F1 visa stamp even if the H1B petition is approved by the USCIS prior to your entry to the U.S. with F1 visa.

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QUESTION: Thanks for the answer. Only one more question to avoid any confusion.

My F1 status will expire on Jan 2013. and let's see my h1b approve with the start date of june15 2012(just assumption). So, I have to come before 15th June or I can able to reenter in July too. My meaning is that if I heard in India that my H1b is approved and start date is 1st july and my arrival date to US is 10 July so at that time they create any issue or I have to get visa stamp before reentering US!

Please I have lots of confusion regarding that and I have to go for emergency purpose only.

Thanks in advance. Eagerly looking for the answer.

Answer
If you are granted change of status to H1B prior to your departure, or anytime prior to your entry to the U.S., and the employment start date noted on the H1B approval notice takes effect prior to your entry to the U.S., then you should enter the U.S. with an unexpired H1B visa stamp, which is normally issued by a U.S. Consulate in your home country.

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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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