F1 -> out of status -> h4 -> h1

[brum]

Hello!

I was on OPT (F1 status) and had H1 visa applied. Unfortunately, I got an RFE and my OPT also expired. Hence, I was unable to work from October 1st and was out of status. While my lawyer was working on the RFE, I had to go to India(home country) for some personal reasons and came back on H4 Visa to USA. My H1 visa got approved after I returned to USA. My company is telling me that in order for me to start working, I have to get my H1 visa stamped. This means that I need to go back to India to get it stamped and only then I will be able to resume work.

My question:

Why do I need stamping? Why can't I continue to work now that my H1 visa has been approved?
Not everyone goes for H1 stamping as soon as it approved. Why is it so in my case?

Thank you very much! I really appreciate the help.

[newacct]

Hello!

I was on OPT (F1 status) and had H1 visa applied. Unfortunately, I got an RFE and my OPT also expired. Hence, I was unable to work from October 1st and was out of status. While my lawyer was working on the RFE, I had to go to India(home country) for some personal reasons and came back on H4 Visa to USA. My H1 visa got approved after I returned to USA. My company is telling me that in order for me to start working, I have to get my H1 visa stamped. This means that I need to go back to India to get it stamped and only then I will be able to resume work.

My question:

Why do I need stamping? Why can't I continue to work now that my H1 visa has been approved?
Not everyone goes for H1 stamping as soon as it approved. Why is it so in my case?

Thank you very much! I really appreciate the help.

When your company applied for your H1b, they basically applied for 2 things in one form: 1) the H1b petition, and 2) a change of status to H1b status (since you were in the US at that time). The H1b petition is now approved (the adjudication of the petition doesn't care about whether you are in the US or not). However, your change of status application was abandoned when you left the US when it was pending. You should have received an I-797B indicating that your petition was approved with no change of status / extension of status. Therefore, you only have an approved H1b petition, but your status is not changed to H1b (your status is still H4). In this case, there are 2 ways to go into H1b status: 1) leave the US and re-enter on an H1b visa, or 2) have your company file I-129 again to change your status (but this takes months and the company may not be willing to file the form again when they just did recently).

If, however, you got an I-797A, which means you also got a change of status approved (which I don't think they would do based on your leaving the US when it was pending), then your status did get changed to H1b and the I-797A comes with a new I-94 indicating H1b status as a part of the page that you can detach.