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AdviceSeeker45

H-1B transfer - Consular Processing - Visa stamp and I-94 expiring soon - Re-enter US with that expired visa stamp due to *timely* filed H-1B transfer petition

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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

Edited by AdviceSeeker45

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As per my knowledge, you will need visa to reenter into USA. You can obtain visa anywhere you like. But without visa you will not be able to enter via Canada or Mexico.  

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I understand that one can't re-enter US with expired H-1B visa stamp. However, I am specifically looking for the case where H-1B visa stamp on passport was "valid" and "unexpired" when H-1B transfer petition was "timely" filed with USCIS "before" visa stamp and I-94 expired. In such case, as per USCIS website, there is "no" accrued "unlawful presence" even though I-94 has expired since the petition was "timely" filed and is "pending" with USCIS. But, I did not find any information about what happens to "visa stamp" validity, can I re-enter US with that "visa stamp" since it expired "only" while the petition was "pending" with USCIS?

All of the above is for re-entering with I-797B due to the consular processing option selected, just thought of clarifying that here.

Any thoughts on the above?

Thanks

Edited by AdviceSeeker45

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I understand that one can't re-enter US with expired H-1B visa stamp. However, I am specifically looking for the case where H-1B visa stamp on passport was "valid" and "unexpired" when H-1B transfer petition was "timely" filed with USCIS "before" visa stamp and I-94 expired. In such case, as per USCIS website, there is "no" accrued "unlawful presence" even though I-94 has expired since the petition was "timely" filed and is "pending" with USCIS. But, I did not find any information about what happens to "visa stamp" validity, can I re-enter US with that "visa stamp" since it expired "only" while the petition was "pending" with USCIS?

All of the above is for re-entering with I-797B due to the consular processing option selected, just thought of clarifying that here.

If anyone of you have been in such a situation, can you share your thoughts on the above scenario? Is there no leeway at all even in this COVID impacted scenario for re-entering within just few days after visa expiry given that transfer was timely filed as stated above?

Thanks

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