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Immigration Issues/F1 OPT to H1B AND TRAVEL

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QUESTION: Dear Mr. Arora,

I am planning to visit my home country (India) in May 2013 with a valid OPT (valid until Jan 2014) and my company will be applying for H1B in April 2013. I am working as a full time employee.

I have few question:
1. If I go to India on May 1, 2013 for 4 weeks, will I be able to enter the United States with valid OPT visa and H1B petition filed?
2. Since my I-94 will be changed while returning back, does that impact my petition?

3. Will my OPT status be valid once I file petition for H1B visa? I understand that if I get an approval for H1B, the starting date will be Oct 1, 2013.

Eagerly looking forward to hear from you.

Thanks.

ANSWER: Hi,

It is OK to travel and enter on unexpired F1 visa stamp if the H1B petition has been approved granting you change of status prior to your foreign travel. In this scenario, you will still automatically be in H1B status on the effective validity date (Oct. 01). You will continue to work with unexpired OPT until Oct. 01, when you will automatically be in H1B status.

However, if you travel outside the U.S. while the H1B petition is still pending with the USCIS, the change of status request will be deemed to be abandoned and you will not be granted change of status even if the H1B petition is approved. Therefore, you may wish to have your employer file the H1B petition at the beginning of April through premium processing, whereby the USCIS will make a decision on the H1B petition within 15 days of filing, and thus hopefully it will be approved (with change of status from F1 to H1B effective on Oct. 01) prior to traveling on May 01.

---------- FOLLOW-UP ----------

QUESTION: Thanks for your prompt reply.

Are there any cons of using premium processing? And is there always a guarantee that I will receive the results within 15 days?

Thanks again.

Answer
There are no cons to premium processing. The USCIS will either generally approve the petition within 15 days of filing, or issue an RFE (request for evidence) in case any additional documentation is required in order to make a final decision (approval or denial). If an RFE is issued, the USCIS will make a final decision within 15 days of receiving a response to the RFE.

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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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