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When should you go back to your home country to get H1B visa stamp done ?

College Station, TX |

Here's a situation : Employer files for H1B via consular processing and not change of status . I get the approval . I start work on OPT until I go back to my home country . The validity of H1B approval is for 3 years . Can I use 12 + 17 months ( STEM ) fully before I go back to my home country ? How soon should I be going ? Can my OPT and H1B via Consular processing have the same start date ? it should be within 6 months of filling an H1B I suppose

Attorney Answers 3


Very specific questions. Contact an immigration attorney in TX. This forum is not for specific legal advice, but general information. As a general matter, you are expected to seek the stamp within reasonable time otherwise it would cast doubt as to the validity of your employment offer. They do not have to grant your visa event if USCIS approved.

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Technically, you can get a visa stamp at any time during the period of validity of your H-1B visa. However, as a practical matter, if you don't get a visa stamp and start working on the H-1B visa, the consulate is going to have some very serious questions about whether a valid employment opportunity exists for you if you have not begun working on the H-1B visa.

You do not say in your question whether you would be working for the H-1B employer while on OPT, but even if you were, and while that might give you an argument to use, that you were working for the H-1B employer though on a different status, I personally would never want to stand in front of a consulate officer and try to make that argument. They have too much discretion and spend too little time during your interview to give you much hope of convincing them the jobs are the same. The fact you work for the same employer does not mean you are doing the same job.

At the very least, you are begging for a 221g notice asking for more information (and causing a significant delay). During that time, you would have to wait outside the US, thereby jeopardizing your job in the US.

The best plan is to go soon and get the visa stamp, assuming there are no other complicating factors perhaps related to the fact that your employer did consular processing as opposed to a change of status.

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What is the difference between consular processing stamping and change of status stamping in case of H1B? Which is safer?


I agree with Myfelt and Segal.

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