OPT-->H!B期间回国与律师详尽的对话分析

现在OPT工作已收到EAD, H!B approved 10月生效，与律师详谈了什么时候回国安全的话题，详见如下：

* 以下观点不代表CATTE的观点，本人将不会对以下的任何言论所产生的行为后果负责。

Me：
Could I travel to China before 10/1. Now the H1 visa is approved.
Does it means that my current F1 visa is invalid?

Attorney:
You should be okay to travel in F-1 status. The change of status does not take place until 10/1/08, so your F-1 status is valid until then. If a person travels while a change of status petition is PENDING, then the law says that the travel voids the change of status request. The law is silent on what happens when a person travels after a change of status petition has been APPROVED. Many attorneys follow the interpretation outlined in the attached letter [见附件], which says that travel after an APPROVAL but before the start date of a change of status petition does not void the
change of status because the change of status becomes effective on the start date of the petition. Of course if you travel and re-enter on the F-1 visa AFTER the start date of the petition (10/1), then you will void the change of status and have to travel abroad to gain H-1B status. Does that make sense? The DHS calls it the "last action rule", where the last action taken by the Service determines your current status. Every time you enter in F-1 or H-1B status, that is an action. Every time you file a change of status or extension of status petition, the start date of the approval represents the date of a new action.

Me again:

I have two choices:

1. Go back to China and reenter US before 10/1

2. Go back to China and reenter US after 10/1

Which one is safer for me?

Attorney:
There is not a lot of risk in either option. If you go to China for 3 weeks in July and re-enter in F-1, then you have a valid visa stamp and EAD, so you'd be fine (you received your OPT EAD, yes?). There could be a slight problem if you left for China in June and didn't return until October 5th, since an officer might wonder if MYCOMPANY's job offer is still valid. You would need a recently letter from MYCOMPANY stating something like "We intend to employ CATTE pursuant to the terms of the H-1B petition approved on his behalf (H!B PROCESS #). We are issuing this letter to facilitate his
temporary travel abroad and re-entry into the US when we expect him to undertake the position offered to him at MYCOMPANY."
If you re-enter on 10/1 or later, then you would need an H-1B visa of course , which can be a pain at some consulates.
Actually the earliest you could enter on H-1B would be 9/22/08 because the law allows H-1Bs to enter 10 days prior to their start date, but you couldn't work until 10/1/08.

Me:

Are you sure there is no risk at all to reenter US before 10/1 with a F1 visa?

It seems that there are two separate issues:

your documents and analysis only prove that the taking effect of the H1 status will not be jeopardized with the F1 reenter, but didn'tmention whether the officials at U.S. ports of entry will issue me such a reentry. We discussed this issue on an online forum and some one posted a document including the following paragraph:

"Foreign nationals seeking to reenter in F-1 status must be able to prove that they have a bona fide intent to enter the United States temporarily to pursue F-1 activities. This can be difficult to establish when the foreign national has an approved H-1B petition and an offer of indefinite employment in the United States. "

it is not clear to me how officials at U.S. consulates and ports of entry will treat people like me who are seeking to reenter as F-1 students but with a approved H1 status to be taken effect. Some one asked the officials on the http://travel.state.gov/, and they clearly told him in this scenario the officials at the US ports of entry have
the power to deny the reentry.

Attorney:
The officials at the ports of entry have the power to deny ANYONE entry, but having the power to do so, and being likely to do so, are two completely different things. Any time you enter in F-1 status the CBP can question the
purpose of your visit. They can question whether or not you have enough funds to finish your period of study, they can question whether you have immigrant intent, they can question if you are really coming to study or to pursue some other activity not authorized by F-1 status. If you have an OPT EAD valid for 1 year and are entering in July, then it should be clear that the purpose of your entry is to gain training. But I didn't say that there is no risk at all. Anomalies do occur at the border every day. CBP officers are probably the least trained and most anti-immigrant out of any of the
Services. For this reason alone I would say that any travel has some level of risk. But legally you are entitled to travel as long as you intend to resume your OPT employment upon returning. See ICE's website http://www.ice.gov/sevis/travel/faq_f2.htm#_Toc81222041. Some people have had problems, and it is impossible to know every circumstance, but it is likely that a person would be denied entry in F-1 OPT if they had only 3 days left to the start of an H-1B, for example. Obviously the closer you get to the H-1B start date, the less likely your re-entry in F-1 OPT seems plausible. CBP officers have a lot of discretion in these matters and won't hesitate to exercise this discretion.

The bigger problem would be if you had to apply for an F-1 visa at a US consulate, but you already have a valid F-1 visa, yes? New visa stamps for F-1 OPTs are regularly denied, so if you didn't have a visa already, then we would advise you not to travel.

If you do decide to travel, you should confirm that your SEVIS record has not been closed, that your I-20 is recent and that you have a letter from SiRF. It would be better to start working at SiRF before leaving too, and take along some paycheck stubs.

Here's an excerpt from "Immigration Options for Academics and Researchers: Travel Issues for Students and Researchers" (Atessa Chehrazi, et al.) that you may find interesting:

"F-1 students may be eligible for post-graduation optional practical training work authorization and J-1 students may be eligible for post-graduation academic training work authorization. While DOS regulations provide for travel authorization during this period, 51 (8 CFR §214.2(f)(13) provides for F-1 travel during the practical training period), travel may be inadvisable if the foreign national must apply for a visa at a U.S.consulate, as it will be more difficult to demonstrate nonimmigrant intent. On the other hand, many F-1s with valid visa stamps who have obtained their EAD cards are readmitted by CBP without problems. (52. Several schools have noted problems with December graduates who want to travel for the holidays. They are still in valid F-1 status, but often have not received their OPT cards yet. The University of Vermont reports that at least one student last year was sent back to Europe, while another in this situation was questioned for hours at Kennedy Airport.) Notably, the SEVIS-DOS interface does not include OPT information, and the Form I-20 is the only place where the consular officer can see the OPT information. 53. DOS Cable, "DOS Standard Operating Procedures on OPT and the I-20," (REF: 9 FAM 41.161, Note 12) (Jan . 2004), posted on AILA InfoNet at Doc. No. 04022565 (Feb. 25, 2004). A compounding factor for F and J students is that some CBP officers both at airports and at land border ports of entry are not familiar with the intricacies of F and J regulations."

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