My Husband is on F1 stem opt (expires on Aug 19)and got his H1b in the lottery for FY 2017 but the application is waiting to be processed. Meanwhile a family emergency is developing due to which he would have to travel his home country before the H1b application is processed. What are the repercussions of him travelling on OPT while H1b application is pending? Is his H1b application will be abandoned? Is there any way we can keep his H1b application?
If an attorney filed the H-1B petition, then talk with the attorney who filed it. If the employer filed it, then your husband might want to meet with and talk to an attorney of his choice. Many of the lawyers on Avvo offer in-person, telephone and online consultations for free.
One issue is whether your husband has a valid F-1 visa in all this. A visa always is needed to re-enter the U.S.
Another issue is whether your husband is on "cap gap" when traveling, or whether his OPT Employment Authorization Document remains valid through to September 30.
In general, if the beneficiary of a petition is outside the US at the time it is adjudicated, and the petition is otherwise approvable, then the worst that will happen is that the "change" portion of the petition is denied (because there is no status to change) but the classification would be approved. The person then would need to apply for a new H-1B visa abroad.
So the situation is not the ultimate disaster you are fearing, but there are some issues to sort out, as noted above. I strongly recommend that your husband meet with a lawyer to sort through them - either, as mentioned, with the lawyer who filed the case or through a free consultation with an attorney.
Good luck and best wishes!
Hopefully the employer is using an experienced immigration attorney to prepare and file the H1B petition. Your husband may approach that attorney who may provide direct answers. The petition could have been filed for a change of status or for consular notification. That will be one issue to review. Another issue to review is whether your husband maintains a valid F1 visa in his passport. A third issue to review with the attorney is when your husband intends to return to the US. Finally, the attorney should have a discussion concerning admissibility and whether your husband has any issues that could cause inadmissibility. If there is no company attorney, then your husband should find an attorney to review these issues and any other issues that arise through a personal and private consultation.
Best place to review your husband's eligibility to depart and return is with the attorney that prepared and filed the H1b. More information is needed such as COS requested, valid passport and visa.
Attorney Robert Brown's (former INS Director, 1972-99) reply to your question is general in nature, and does not constitute legal advice as all facts are known to him. For specific advice or representation you should retain an attorney experienced in immigration law. Mr. Brown's reply on AVVO does not create an attorney/client relationship not constitute legal advice.
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