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New I797 but old H1B stamp - advice please

Discussion in 'Working Nonimmigrant Visas' started by zack, Aug 14, 2008.

  1. zack

    zack Junior Member

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    Thank you for such a wonderful forum.

    Following is my background:

    1) Completed a four year undergraduate degree in USA
    2)H1B started in Nov 2005
    3) This H1B was sponsored by a major bank ('Bank A')
    3a)Went to Canada for 4 days and entered back on H1B Automatic Revalidation Rule in 2006
    4)Left USA in Sept 2006 due to personal reasons
    5)Got H1B stamped since I was still employed by BANK A
    5a)Never traveled to USA on this H1B stamp
    6)Resigned from the bank but they did not cancel my H1B
    7)August 2008 - In touch with a company who wants to do my H1B transfer ("Company 'B')
    8)My old H1B stamp with the bank's name on it expires in second week of November 2008

    Here is my question:

    I will get my new H1B transfer I797 from Company 'B' very soon, and definitely before November 2008, which is when my H1B stamp expires.

    My question is that, can I travel to USA with my original H1B stamp from Bank A which expires in Nov 2008. I know the answer is yes if I had already traveled on my original H1B from BANK A at least once before.

    So, to reiterate, can I travel to USA with my new I797 from Company B and H1B stamp with Bank A name mentioned on it, even though I have not traveled on this H1B stamp before?

    Sorry for a lengthy question. I really appreciate your advice.

    Regards,
    -Z
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: New I797 but old H1B stamp - advice please

    Both the CIS and the State Department agree that an H1B visa remains valid after you change employers. All you need to do is present the unexpired H1B visa and the currently valid I-797 H1B approval notice at the port of entry.
     
  3. zack

    zack Junior Member

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    Re: New I797 but old H1B stamp - advice please

    Many thanks Ron for your reply. It is very kind of you indeed.

    While your view is the prevalent one amongst most lawyers, there are some lawyers who differ and argue the following in my case.

    They claim that because of the following reasons

    1) I never travelled on the H1B stamp of BANK A

    2) My H1B was transferred to a new employer while I was OUTSIDE the United States

    3) Since I am outside USA, my Form I797 will say 'Report to Following consultate'

    Consequently, in view of the above three issues, they argue that I am best advised to get a new stamp in my passport. They claim that the visa officer at port of entry might be confused, and may, in rare circumstances, refuse entry.

    What are your thoughts about this/these argument(s)?

    Also, do you think getting a written opinion regarding this matter from a lawyer would be helpful to show to the POE officer?


    It is of utmost importance to me that I am not refused entry and consequently, I am trying to make sure that I understand what do I need to do.

    I will look forward to your response.

    Thank you

    Regards,
    -Z
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: New I797 but old H1B stamp - advice please

    Without knowing the precise question presented to another attorney, I am not going to comment what he or she may or may not have said. Let me refer you to a Department of State cable on this subject. The CIS has said that they agree with the position taken in this cable. Please note that I have added emphasis to the portion to which I wish to draw your attention.

    Let me add to that an answer provided by the Visa Office in response to a specific question submitted by the American Immigration Lawyer's Association:

    Finally, let me add the text of this very explicit field memo from the CIS:

    [7/8, Aytes] INS on Validity of Business NIVs
     
  5. marko

    marko Junior Member

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    New I797 but old H1B stamp - advice please

    Thanks RON,

    I need your advise

    I have previous company A's valid Visa stamp untill 2013. I transferred H1B to Company B and got new I797, valid untill 2014. At the same time when I transferred H1b, the previous company A was acquired by a big corporation, so I mean now there is no Company A .

    Now I want to travel to my home country for 2 week. Do i have to go for stamping? if no, is the port of entry people give any hard time to H1b holder if person has valid OLD VISA from company A( the company which is no more) with new I797?

    Please help me by providing little information on it. Do I have to carry any document to re enter back to the USA( POE)?

    Do I have to worry about anything?
    I saw your post and the INS and DOS documents but they are 10 years old. Are they still valid?

    I will really appreciated your help and valuable time.
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: New I797 but old H1B stamp - advice please

    Yes, those policies are still valid and being followed as stated.
     
  7. marko

    marko Junior Member

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    Re: New I797 but old H1B stamp - advice please

    Hi RON,

    So you mean I can go and come back with old VISA and new I797 petition.

    Please clarify me .

    Thank you so much
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: New I797 but old H1B stamp - advice please

    Yes you can, as long as you have an unexpired visa to go with it. The visa can be from a prior employer.
     
  9. marko

    marko Junior Member

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    Re: New I797 but old H1B stamp - advice please

    Hi ROn,
    Thank you sir,

    I have valid visa unitll 2013 and new I797 VALID UNTIL 2014
    I was thinking too much and it was hard decision for me to go or not to my native country to attend a big family(for me) event.

    what documents i have to carry, if you dont mind?

    Thanks.
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: New I797 but old H1B stamp - advice please

    You need to carry your passport (with the visa inside), your I-797 approval notice, and while not required, it is a good idea to carry a copy of a recent paystub.
     
  11. anandkk2014

    anandkk2014 New Member

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    Hello Attorney Gotcher,

    I am in similar situation as above except that I have also received I-824 along with my approved I-797. Below is my situation.

    I have a valid visa stamped for my current employer through 05/2018 and last week I received an approval for extension until 11/2019 for the same company. Unlike my extension, this time it has asked to file I-824 before I go for visa stamping at US consulate. Below is the text of the letter received along with approved I-797.

    The form 129 petition was submitted requesting an extension of stay or change of status, and the petitioner either didn't include a duplicate copy of the petition or didn't clearly indicate that the duplicate was submitted expressly for the purpose of future consular notification. Either of the conditions reflected above may affect the beneficiary's ability to obtain a visa at the consular office. However, the petitioner may file a form-824 with appropriate fee (currently $465)and inlcude the duplicate form I-129 with a complete set of all supporting documentation in order to obtain consular processing, if required."

    My questions

    1. Can I use the previous visa stamp to enter the country along with the new I-797 before it expires i.e. 05/2018? (I have done this once before but then the I-797 didn't ask for I-824.

    2. I am not aversed to a fresh visa stamping but last 2 times, I received an admin processing (with the same company) and as stuck in India for 4 months each.

    3. If I decide to file I-824, can I do it from India or is it possible to file while I am here in the US and can I still travel outside USA while it's pending?

    4. The 465$ fees for I-824 - Does the check for 465$ need to be from the employer or can I use a personal check for filing I-824?

    Thanks in advance.

    Anand
     

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