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Immigration Issues/On OPT...H1B Approved...Leaving US for 6 Months

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Question
Hi,

I am currently working on OPT and my H1 is approved and I can start using it from Oct 2012. Now, I have to leave USA for 6-8 months. I will not be working at all during this time. What are the option while coming back to USA.

1. Can I enter on H4 visa and again get H1? Do I need to wait for quota or I can go in quota exempt as I have already applied H1 and it is approved. If I do that, do I need to get Stamping done before I continue working?

2. Can I do the stamping now with my current employer? And come back after 6-8 months on H1 visa?

3. I will not be using my full OPT period. Can I suspend OPT temporarily and apply again once I come back

Answer
Hi,

There is no problem in departing the U.S., but since upon your return your intention is employment with the H1B employer, you should obtain an H1B visa stamp from a U.S. Consulate in your home country. You can apply at the Consulate a reasonable period prior to H1B effective date (example: in September) on Oct. 01, or you can apply at the Consulate for the H1B visa stamp anytime prior to actual entry to the U.S. The H1B visa stamp will be valid for 3 years (assuming that the H1B petition was approved for a 3 year period by the USCIS) and you can enter the U.S. anytime during its validity as long as your intention at time of entry is employment with the sponsoring H1B employer.

Although you can enter the U.S. on H4 visa stamp, it is not recommended if your intention is employment with the H1B employer, as this will necessitate the filing of another H1B petition by the employer. It appears that you will be subject to the visa cap again per strict interpretation of USCIS guidelines if you choose this path of entering on H4 visa stamp, although in our experience it is not necessarily so.

OPT cannot generally be suspended and resumed later, but you can check this with the DSO (the officer who issued your I-20 at the university).

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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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