Is it OK to leave US while a new H1b's petition is filed?

[user20111112]

Hi there,

I have a situation and I would like to have your insight on it.

I am currently working for a company under an H1b. The company is being merged into another, so a new petition will need to be filed. The trouble is the time of this new filing (when the new company is born) will coincide with my wedding plan in my home country. The wedding plan has been in place before the merger was even announced, so things were out of my hands. I would really like to not have to delay the wedding date.

Is it OK to be outside of the US while the petition for the new H1b is filed?

Thank you so much for your help.

[shervin143]

Yes, the petition can be filed as a consular process and when it gets approved, you can enter U.S with the newly approved petition and a valid H1B visa.

[user20111112]

Yes, the petition can be filed as a consular process and when it gets approved, you can enter U.S with the newly approved petition and a valid H1B visa.

Thank you so much for your quick reply.
I would also like to add that my visa stamp that I obtained from my previous trip home will be still valid by the time I get back to the US. Will the fact that a new petition has been filed cause problem with my current H1B status? In other words, will I have to use another stamp to re-enter a US port?

Thank you!

[shervin143]

You can you the existing H1B visa with the newly approved petition to re-enter U.S. No need to get the visa stamped again.

Thank you so much for your quick reply.
I would also like to add that my visa stamp that I obtained from my previous trip home will be still valid by the time I get back to the US. Will the fact that a new petition has been filed cause problem with my current H1B status? In other words, will I have to use another stamp to re-enter a US port?

Thank you!

[user20111112]

My company's lawyer just warned me against traveling outside the US while the new petition is filed. He said that if I am abroad and my company ceases to exist (merged with another into a new company) then even if I use my current H1B stamp to re-enter, I would be committing fraud, and may pay for that later.

What do you think?
Thanks.

[shervin143]

Well, consult a good immigration attorney. Even if you change your employer, you can use the existing valid H1B visa in your passport with the new company's approval notice to re-enter U.S. This is not illegal. The attorney doesn't seem to know what he/she is talking. what is illegal is using an approval notice of a company to enter U.s to work for a different employer or using the approval notice of a company to enter U.S that no longer exist. Visa is never an issue.

My company's lawyer just warned me against traveling outside the US while the new petition is filed. He said that if I am abroad and my company ceases to exist (merged with another into a new company) then even if I use my current H1B stamp to re-enter, I would be committing fraud, and may pay for that later.

What do you think?
Thanks.