Travel before H-1B application

[amithchordia]

Hello,

I am planning to visit India and apply for my change of status from F-1 to H-1B visa once i return. I am currently on OPT and based on my travel plan i will be applying within the first 2 weeks of my return to avoid any chances of the H-1 cap exhausting. Is it advisable to do so? I read online about potential rejection or denial of change of status based on "preconceived intent". Please advice if it is a good idea to travel.

Thanks,

Amith

[Attorney_25]

Clearly you cannot use an F-1 visa to enter the US for the sole purpose of changing status to H-1B, as that would be considered a fraudulent entry on an invalid entry document. However, if you enter on the F-1 visa and immediately start to work in your F-1 OPT position, and provide payslips with the H-1B application, it is likely that your H-1B change of status will be approved, although there may be a request for evidence on the issue to try to determine your intent. The best case scenario to avoid potential issues is to wait at least 30 days after entry, and preferably 60, to file the change of status. If you would like to discuss your strategy in more detail, please schedule a consultation with a qualified immigration attorney.