Can I leave US before 10/1 and come back in after 10/1?

USA H1B Visa
1

I filed H1 COS this year and just got noticed it’s been approved, now I want to know if I can leave US before 10/1 and come back in with a visa stamp as H1 after 10/1? Will my petition be treated as abandoned if I leave before 10/1??

Thank you.

2

If your H1 is approved with COS then you need to get H1 stamped before coming back after 10/1. It will not be treated as abandoned

3

Hello Ankit1912,

Then what’s the difference between COS or not COS? I guess they have two options when file H1 right? One is COS, then at 10/1, your status would automatically change from F1 to H1, then if you are not in US on that date, it does not matter? it just would not automatically change, but would still change the status to H1 along with the entry after 10/1 with the new H1 Visa?

Thank you.

4

Let me take a stab at it.

A person’s status in US is determined by the latest I-94 issued to the person. When COS is approved, USCIS issues a new I-94 mentioning the status as H-1. This way, the status changes from XX to H-1 on Oct 1. If you are not present in US on Oct 1, then that COS doesn’t go into effect.

When you return to US on stamped H-1 visa, you will be issued an I-94 at the PoE. This will become your latest I-94 (assuming you are returning after 10/01) and will determine your status in US, which in this case will be H-1.

Does that clarify?

5

Hello Saurabh,

So as a conclusion, as long as I come back in US after 10/1 and get a new VISA Stamp for H1, it does not matter when do i leave US, and does not matter if the H1 COS would fail, I’ll still be legally change to H1 with my re-entry with the new H1 visa, Right? So there’s would be no problem if I leave US before 10/1.

Thank you very much for your response.

6

That is correct. Irrespective of what happens to your COS, if you enter US after 10/01 w/ H-1 visa stamped, you will be considered on H-1 status from your entry date.

Note that if COS is approved and you do not leave US until 10/01, then you will automatically move to H-1 status from 10/01 and have to start maintaining that status.

7

Thank you very much Saurabh, now I can book my flight. :slight_smile: