H-1B transfer - Consular Processing - Visa stamp, I-94 expiring - Reenter US

[Ok56]

Hi,

I have few questions regarding H-1B transfer via Consular processing filed *timely* *before* visa stamp and I-94 expire. Also there are some follow up questions regarding re-entering US with the same visa stamp which was *valid* when the H-1B transfer petition was *pending*(hence no unlawful presence) with USCIS but expired by the time I-797B is received. Can anyone of you answer if you have some insights into these?

1) With the person(beneficiary) in US, H-1B transfer is filed *timely* via consular processing "*before* visa stamp and I-94 expire".

2) Visa stamp and I-94 expire when H-1B transfer petition is still *pending* with USCIS.

3) USCIS issues I-797B

4) Now, as per USCIS rules and regulations, since H-1B transfer petition was filed *before* visa stamp and I-94 expiry, the person *never* overstayed as one does not accrue unlawful presence when the H-1B transfer petition is filed *timely* *before* visa stamp and I-94 expire.

5) Given the above (4), can the person re-enter US from Canada or Mexico border with the same above visa stamp though it has expired, since the H-1B transfer petition was filed *before* visa stamp and I-94 expired and hence there has been no unlawful presence whatsoever?

6) If the answer to above (5) is "yes", within how many days the person should re-enter - within 10 days, 15 days, etc of getting I-797B?

7) If the answer to above (5) is "no", is it fine to go to Canada or Mexico(not being a citizen of Canada or Mexico) for H-1B visa stamping in this case(since there is no unlawful presence at all because of *timely* filed H-1B transfer), even if person has some out-of-status period(which is *different* from overstay/unlawful presence)?

8) Is there any leeway due to COVID on I-94 and visa stamp expiry - like is it fine to re-enter US from Canada or Mexico if only few days(say 1 - 10 days) have passed after visa stamp and I-94 expiry?

Thanks

[rkk09]

Hi Member,

Please see my response below.

5) Given the above (4), can the person re-enter US from Canada or Mexico border with the same above visa stamp though it has expired, since the H-1B transfer petition was filed *before* visa stamp and I-94 expired and hence there has been no unlawful presence whatsoever?
Answer: If your H1B transfer petition got approved and it got approved with consular notification then you will need to go for stamping and get visa stamped in order to accept new Job offer mentioned in the H1B transfer petition.. And also, Please note, If the petition is approved with consular processing, In the approval notice, consulate place will be mentioned. So, you will need to get visa stamped in the concern consulate.

6) If the answer to above (5) is "yes", within how many days the person should re-enter - within 10 days, 15 days, etc of getting I-797B?
Answer: There is no time limit to get stamped.. If you want to join in the new Employer who sponsored your H1B transfer petition then you will need to get visa stamped and come back to the country to join new Employer.

7) If the answer to above (5) is "no", is it fine to go to Canada or Mexico(not being a citizen of Canada or Mexico) for H-1B visa stamping in this case(since there is no unlawful presence at all because of *timely* filed H-1B transfer), even if person has some out-of-status period(which is *different* from overstay/unlawful presence)?
Answer: It is not really suggestable to go any other countries other than mentioned in the I-797B Approval notice consulate place.

8) Is there any leeway due to COVID on I-94 and visa stamp expiry - like is it fine to re-enter US from Canada or Mexico if only few days(say 1 - 10 days) have passed after visa stamp and I-94 expiry?
Answer: There is no such offers I could see these days.. Always you will need to follow the Immigration guidelines giving by US government.

Thanks