Travel on OPT, H1B Approved

[Muhammad Patel 0]

Does anyone have experience with traveling while on OPT and with approved (but not activated) H1B COS?

I want to visit my family during the summer and would try to return on OPT status before Oct. 1st. My lawyers have stated that while this should be possible since all my documents are valid, I could have trouble at the port of entry showing non-immigrant intent even if my H1B is not active.

Has anyone successfully done this?

[Boiler 43,859]

You have a current F1?

[Muhammad Patel 0]

Yes, I have F1 with valid passport stamp.

[jan22 2,938]

What do you mean by saying your H1B Change of Status (COS) has not been "activated"?  Does the approval have an "as of" date on it?  If not, then you are no longer in F1 status -- it has been changed to H1 status.  You would then need to get an HiB visa to return to the US.  If it does, and you have a valid I-20, you can return on your F1 visa.

[Muhammad Patel 0]

Thank you for the information! I was under the impression that H1B always begins on Oct. 1st regardless of when the COS is approved - is this not the case? Can I return on a I-20 and F1 visa/OPT card even if H1B is approved?

[nastra30 2,074]

8 hours ago, Muhammad Patel said:

I was under the impression that H1B always begins on Oct. 1st regardless of when the COS is approved - That’s my understanding too.

Can I return on a I-20 and F1 visa/OPT card even if H1B is approved? - Yes, again based on my understanding that your COS won't take effect until October 1st and as long as you are in the US before Oct 1st.

The way I understand it you are in a very tricky situation in terms of travel.

Technically, even though your H1B COS has been approved, your actual change of status won't take effect until October 1st. (What does the validity date say on your approved COS I-94?)

So the only way to travel and return will be based on your current non-immigrant F1 visa.

You'll need the following when returning: valid I-20, valid unexpired F-1 visa (If not you will have to obtain a new F-1 visa), your valid OPT EAD, and verification letter from OPT employer.

The tricky situation if you return on F1:

*You'll still need to convince CBP that you intend to comply with F-1 rules including not having immigrant intent.

*Also there's a limit of 90 days (30 days if it's OPT extension) on how long you can stay unemployed during OPT. You need to keep track of this not violate it so it doesn't count against you.

 

PS: My advice will be to travel after Oct 1st if you can help it.

Edited June 11, 2022 by nastra30

[SusieQQQ 11,585]

I’m a little confused, H1B is a non immigrant status too so why the issue about immigrant intent ? 

[nastra30 2,074]

35 minutes ago, SusieQQQ said:

I’m a little confused, H1B is a non immigrant status too so why the issue about immigrant intent ? 

In op's current situation he can't travel and retun on H1B just yet because it becomes active on Oct 1st at which he has to satisfy not having immigrant intent related to that. Currently they can only travel and return on their current F1 visa until Oct 1st comes around, hence having no immigrant intent associated with F1 visa needs to be satisfied more immediately.

 

Additionally, H1B has a dual intent.

 

Edited June 11, 2022 by nastra30

[SusieQQQ 11,585]

Just now, nastra30 said:

In op's current situation he can't travel and retun on H1B just yet because it becomes active on Oct 1st. So they can only travel and return on their current F1 visa until Oct 1st comes around, hence having no immigrant intent associated with F1 visa needs to be satisfied.

I still don’t see why needing to prove non immigrant intent is an issue. CBP officers do actually use logic, OP will clearly not overstay the F1 and already has a non immigrant status lined up to change into. 

[nastra30 2,074]

6 minutes ago, SusieQQQ said:

I still don’t see why needing to prove non immigrant intent is an issue. CBP officers do actually use logic, OP will clearly not overstay the F1 and already has a non immigrant status lined up to change into. 

Hence my tricky situation comment. You'll hope CBP will use logic.

Edited June 11, 2022 by nastra30

[SusieQQQ 11,585]

6 minutes ago, nastra30 said:

Hence my tricky situation comment. You'll hope CBP will use logic.

I just don’t see it as being tricky as all. 
If OP had had an immigrant petition filed/wanting to do AOS, then it would be tricky. This, no.
 

 

Edited June 11, 2022 by SusieQQQ

[nastra30 2,074]

59 minutes ago, SusieQQQ said:

I just don’t see it as being tricky as all. 
If OP had had an immigrant petition filed/wanting to do AOS, then it would be tricky. This, no.
 

 

I'll assume it's a re-admission based solely on F1 visa and F1 rules including proofing non-immigrant intent. Or a new admission (after passport stamped) after Oct 1st based solely on H1B and H1B rules. 

But I see what you are saying so my understanding might be off. 

Personally, If I were op I will wait to travel after Oct 1st; just me.

[Boiler 43,859]

A visa has significant advantage compared to status 

[SusieQQQ 11,585]

11 minutes ago, nastra30 said:

I'll assume it's a re-admission based solely on F1 visa and F1 rules including proofing non-immigrant intent. Or a new admission (after passport stamped) after Oct 1st based solely on H1B and H1B rules. 

But I see what you are saying so my understanding might be off. 

Personally, If I were op I will wait to travel after Oct 1st; just me.

“I see you’re on OPT, what are your plans for leaving the US after that’s done?”

”actually I have approved COS to H1 status from October” (shows documentation to CBP)

”cool” (stamps passport)

 

 

Edited June 11, 2022 by SusieQQQ

[Muhammad Patel 0]

13 hours ago, nastra30 said:

The tricky situation if you return on F1:

*You'll still need to convince CBP that you intend to comply with F-1 rules including not having immigrant intent.

 

Thank you so much for the information and your advice! This is basically what I got out my lawyers.

 

10 hours ago, SusieQQQ said:

“I see you’re on OPT, what are your plans for leaving the US after that’s done?”

”actually I have approved COS to H1 status from October” (shows documentation to CBP)

Could another response not be something along the lines of:

"So you could have immigrant intent" (denies entry)?

 

Since H1B is dual intent, could I not end up having to convince them that I am using H1B for its nonimmigrant side? It seems like it's a bit of a grey area and I agree that I would rather avoid the risk of CBP...

 

Do you know what would happen if I was denied entry under my F1? Would I have to change my H1B petition to consular processing, go through the interview process, get an H1B stamp, and then return on H1B or is there an easier way? 

Edited June 12, 2022 by Muhammad Patel