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COS from B1/B2 to H1B while in US - Is it necessary to take up employment in US

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  • COS from B1/B2 to H1B while in US - Is it necessary to take up employment in US

    One of my employees who is on B1/B2 visit to US has applied for COS from B1/B2 to H1B while in US and has got the H1B approved recently. The approval is effective from 01 Oct 2020 and I understand that from 01-Oct-2020, B1/B2 will no longer be valid. The employee was stuck up in US due to COVID. His i94 is valid till 31 Aug-2020 and we have applied for a I94 extension. Now, the question is that is it necessary for the employee to stay in US till 01 Oct 2020. Also, if yes, is it necessary for him to take up employment in our US entity on H1B. The employee was planning to come back to India in Oct-Nov time frame. Should he join employment in US, resign and come back, take his stamping in India and go back later. Does he lose anything, if he does not join US employment on 01 Oct 2020.

  • #2
    You can only work on an H1 from October 01.
    The approval notice (if in the US) should have an I-94 for the validity of H1 term. If it does not have an I-94, it usually means that the employee needs to leave the country and apply for a visa at the consulate.

    There is no criteria that the employee must join on the start date of H1. It can be several weeks or months later. The company will need to issue the offer letter just before his consulate / visa appointment, so the folks know he still has a job.

    As I-94 extension (for B1/B2) is pending, the person may continue to stay in the US as a visitor. Absolutely NO WORKING on this status.

    The current executive order (EO) prevents consulates from issuing H1 visa stickers through Dec 31, 2020. So if he left the country, he won't be able to return till Jan 01,2021 or till the EO is lifted.

    Opinion only. Cannot be construed as legal advice.

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    • #3
      Thank You very much R78.
      Wanted to check if it is OK for the employee to return to India earlier than Oct 01, 2020 or is he necessarily required to wait in US till the approval effective date of 01 Oct-2020.

      The I94 portion of the I797 received gives the following at bottom left part of the I797 first page
      Receipt #
      I94# -
      NAME -
      Class - H1B
      Valid from 10/1/2020 to 05/31/2023
      Petitioner

      If employee is not intending to take up job now in Oct ( because he wants to be in India with family after long COVID induced stay) and join back US employment once for all later on, sometime next year only after stamping. IN SUCH A CASE, is he bound to stay back in USA? Now flights are starting again from 01 Aug 2020. Does he still need to stay there in US till Oct 01, 2020

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