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Immigration Issues/Travel to India after H1B approval

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QUESTION: Hello Sir,
Please help me by advising me a safe period for travel to India for a month.

I am currently on F1-OPT period and a company A(authorized vendor of company B for which I will work) is filing my H1B on April 13.
1. Can I go to India with no risk when I get to know that my H1B is approved? (i.e during September 13 or before October 1st)
2. Which is safe? Travel to India after H1B approval but before Oct. 1st or Travel to India after H1B becomes effective on Oct. 1st.
3. For either case in que 2, please inform me possible risks and what precaution I should take care off?

A huge thanks in advance.

ANSWER: Hi,

You can travel and enter the U.S.on unexpired F1 visa stamp in passport anytime prior to Oct. 01, assuming that your OPT has not expired prior to entry to the U.S. This holds true even if H1B petition has been filed and approved, as the purpose of your entry will be to resume OPT (until H1B effective date of Oct. 01).

If you travel and plan on entering after H1B status takes effect on Oct. 01, you should enter on H1B visa stamp, normally issued by a U.S. Consulate in your home country, as the purpose of your entry at that time will be employment with the H1B employer.

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QUESTION: Thank You very much for your prompt Answer.

In addition, my OPT period is valid upto January, 2014. So, if I travel to India after I get to know that my H1B is approved (i.e.during August/September, 2013), do you mean that time I need not to go to U.S consulate for H1B stamping? also, it will have no impact on my approved H1B which will about to become effective on October, 2013? I mean when I will be back in U.S., my H1B will automatically effective from Oct. 13?

Do you prefer this way over travel after Oct.1st, 13? since I have heard a lot about problem with H1B stamping at consulate.

Again, I want your advise/suggestion that if travel to India before oct. 13 is better to avoid risk of going to U.S. Consulate for H1B stamping, Shall I go for premium processing to know my H1B approval soon in order to develop a better schedule to travel to India?

Waiting for your reply,
Thank you

Answer
If you travel outside the U.S. after H1B petition is approved granting change of status to H1B effective Oct. 01, but enter the U.S. prior to Oct. 01 (you can enter on unexpired F1 visa stamp), you will automatically be in H1B status on Oct. 01 and need not go outside the U.S. for H1B visa stamping.

If you travel while the H1B petition is still pending with the USCIS, you can still enter the U.S. on existing unexpired F1 visa stamp if you enter prior to Oct. 01 (irrespective of whether the petition is approved or not by the USCIS), but you will not be granted "change of status" to H1B effective automatically on Oct. 01. This will require you to travel again outside the U.S. and enter the U.S. on unexpired H1B visa stamp, issued by a U.S. Consulate on the basis of the H1B approval notice issued by the USCIS, in order to activate H1B status.

Thus, it may be best to file H1B petition through premium processing, so that the H1B petition is approved by the USCIS prior to traveling.  

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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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