Should / can i travel back to the US on my valid F1 while my H1B is in administrative processing?

[khurram6050 0]

Hey all. I need some advice on a situation i am stuck in.

I finished my grad school in summer 2022 and started working for a tech company in August 2022 on OPT. My H1B had gotten approved while i was still in school which is the reason i opted for 'consular notification' instead of 'Change of status' to make the switch to H1B since i needed to maintain my F1 to finish grad school.

I travelled back home in December 2022 to get the H1B stamped. Sent my documents to the consulate in mid-december because i qualified for the interview waiver. After a month they sent my documents back and asked me to come to the embassy in-person. My interview was in mid-February. Unfortunately i got put in administrative processing and have been on the same for 4+ months now. So far i was working remotely, but now have been forced on a leave of absence due to tax related issues because i can't work from abroad for more than 6 months according to some tax law.

I was thinking of coming back on my F1 which is still valid till January 2024 and extending my OPT (current one expires in mid-August). Do you guys think i can/should do that? Is there a chance i might be denied entry and forced to return from the airport? Can doing this have an adverse effect on my H1B in processing?

My main motivation for coming back is so that one i can of course start earning again since i still have to pay rent on my apartment and all that. Plus i do not want to lose the opportunity of extending my OPT for another 2 years just in case this processing takes a really long time OR worst case my visa gets refused. I even asked the congress person from my area to file a congressional inquiry on my behalf. Even they got sent the same info that my case is in AP and i will get an email once its done. Being in this transient phase has gotten really frustrating now and i am now in a state where even logistical things are starting to become a problem such as should i renew my lease or not.

Any advice would be really appreciate. Cheers!

[Sinead91 249]

This is a messy one. 
 

because you graduated, you are no longer eligible for F1 status. While your stamp / F-1 visa may mot have expired, you are no longer a student (that is what I have seen where I work. We are a cap exempt employer) and your STEM OPT is pretty much done now, again, since you left the U.S.

 

Your new H-1B sponsor should have filed for a change of status for you and you should have stayed in the US, the petition could have been expedited for $2500 and you’d be ok. 

unfortunately, your job is not protected in the U.S. and I do hope that your employer continues to wait for you to return. 
 

Working abroad for a US company is a big issue and there are a lot of international laws and tax rules there so I am not surprised they pulled the plug on that.

 

right now you (again, my opinion, and what I’ve seen) need to patiently wait for your H1B stamp before returning to the US.  

Edited June 18, 2023 by Sinead91

[randomstairs 303]

On 6/17/2023 at 6:32 PM, Sinead91 said:

your STEM OPT is pretty much done now, again, since you left the U.S.

Their F1 is still valid because of the OPT. Where does it say that you can't travel on OPT F1? 

[Sinead91 249]

On 6/19/2023 at 2:09 AM, randomstairs said:

Their F1 is still valid because of the OPT. Where does it say that you can't travel on OPT F1? 

The F-1 stamp is still valid and you can travel on it, but it certainly isn't intended for being abroad for 6 months.

 

I say what I said above because it happened to a handful of candidates I have seen over the years, from red flag countries especially, where they have left the U.S. on STEM OPT, and stayed outside the US for an extended period of time and tried to return on their F-1 stamps. They were denied entry at the border because they are no longer students, therefore entry on the F-1 was denied. Similarly, the EAD card, where they have STEM OPT, is likely not authorized for re-entry. 

 

It would be risky, and I have a hard time imagining that border patrol will authorize entry.

 

[randomstairs 303]

On 6/15/2023 at 6:36 AM, khurram6050 said:

Hey all. I need some advice on a situation i am stuck in.

I finished my grad school in summer 2022 and started working for a tech company in August 2022 on OPT. My H1B had gotten approved while i was still in school which is the reason i opted for 'consular notification' instead of 'Change of status' to make the switch to H1B since i needed to maintain my F1 to finish grad school.

I travelled back home in December 2022 to get the H1B stamped. Sent my documents to the consulate in mid-december because i qualified for the interview waiver. After a month they sent my documents back and asked me to come to the embassy in-person. My interview was in mid-February. Unfortunately i got put in administrative processing and have been on the same for 4+ months now. So far i was working remotely, but now have been forced on a leave of absence due to tax related issues because i can't work from abroad for more than 6 months according to some tax law.

I was thinking of coming back on my F1 which is still valid till January 2024 and extending my OPT (current one expires in mid-August). Do you guys think i can/should do that? Is there a chance i might be denied entry and forced to return from the airport? Can doing this have an adverse effect on my H1B in processing?

My main motivation for coming back is so that one i can of course start earning again since i still have to pay rent on my apartment and all that. Plus i do not want to lose the opportunity of extending my OPT for another 2 years just in case this processing takes a really long time OR worst case my visa gets refused. I even asked the congress person from my area to file a congressional inquiry on my behalf. Even they got sent the same info that my case is in AP and i will get an email once its done. Being in this transient phase has gotten really frustrating now and i am now in a state where even logistical things are starting to become a problem such as should i renew my lease or not.

Any advice would be really appreciate. Cheers!

Why did your employer file for H1B when you had the OPT +STEM?

[M+K IL 102]

34 minutes ago, randomstairs said:

Why did your employer file for H1B when you had the OPT +STEM?

This is actually quite common. Getting H1B is tough since there are more applications than visas issued, though graduating from a US grad school helps as you get to double dip - if your application does not get picked among the special category for people with advanced US degrees, it gets reentered in the general pool. So employers will often try to file for H1B each year to hopefully get through before the OPT expires.

Unfortunately ... sometimes administrative processing happens. I'm not sure what's the best recourse is here though. Sorry, OP, this is a rough situation to be in.