Published on the World Journal Weekly on August 24, 2014

Q & A 1. 2.

Q&A 1.

Are There Risks in Returning Overseas When in H-1B Status When the H-1B Will Expire Close to the Time of the Planned Return to the U. S.?

An H-1B holder asks:

I am an H-1B holder, my current employer’s I-797 approval notice will expire in August. I plan to go back to china in June and return by the end of June. Can I do that?

Dear reader:

I do not see a problem if you have an H-1B visa in your passport which extends up to the time of your return to the U. S.  Customs and Border Protection inspectors would admit you since there is time left on your current H-1B so long as they are convinced that you are still working for the current employer. If you do not have an H-1B visa in your passport covering the period of your return, and if you must interview for the visa at an American consulate or embassy in China, there may be some difficulties – probably not so much with the time that is left on the H-1B as with what may happen if the visa is not readily approvable and you must undergo administrative processing.  When that occurs, administrative processing may delay application adjudications for months at American consular posts and might prove to be a large headache to you if that period of time exceeds the validity of your current I-797 approval notice.

Q&A 2.

Are There Risks in Traveling Overseas During the Period of OPT When the Student is Unemployed?

A F-1 Student asks:

I am a Chinese F-1 student, currently holding OPT, valid until June next year. I have contracted work now, and the contract end in December and no extension. I need to apply and interview for the visa to return to the U.S because my visa has already expired. I want to return to China in December, and come back to the U.S on January. But my status at that time would be unemployed. I want to ask: Will I be able to receive a visa? Can I tell the immigration officer I am coming back to look for job?

Dear reader:

Whether you will be able to receive the F-1 visa to return to the U. S. will depend upon the reasonableness of a consular officer. F-1 visas are given in the discretion of officers who will consider whether the individual has intention to return to the home country after the period of schooling. Some consular officers might take the position that there is nothing for you to return to when you are on OPT (Optional Practical Training), especially when you are not even employed in your chosen field. To be safe, you would not return to China and you would try to find another opportunity for training in your field as soon as possible. As you are aware, you cannot be unemployed for more than 90 days while on OPT without being considered out of status.


Copyright © 2003-2017 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.


  View Alan Lee's profile

 View Alan Lee's LinkedIn profileView Alan Lee's profile