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Entering and leaving US on a H1B before starting employment

Entering and leaving US on a H1B before starting employment

Old Nov 22nd 2021, 8:52 am
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Default Entering and leaving US on a H1B before starting employment

I posted here before about whether it was possible to enter and leave the US as a tourist (visa waiver) with a H1B in ones passport.

However I have a new dilemma. For various reasons I have realised I am actually not eligible for an ESTA. I also do not have time to get a tourist visa. I was planning to take a vacation in the US in december.

I do now have a valid H1B in my passport. However I was not intending to commence employment in the US until January. My question is, could I use the H1B to visit and leave the US in december without commencing employment? If not, could someone explain what the reason this would not allowed? (Is it that you must commence employment when you first enter on a H1B?)

I will likely cancel this trip if there is no easy solution, but I thought I should ask this in case Im overthinking this and using the H1B is fine.

Last edited by tariqbutt; Nov 22nd 2021 at 8:55 am.
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Old Nov 22nd 2021, 11:41 am
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Default Re: Entering and leaving US on a H1B before starting employment

I believe you can only activate an H1B 30 days prior to starting your job in the US. Assuming you are going to be employed within those 30 days, you would be ok.

EDIT: It may only be 10 days. I'm trying to find the actual law.

Last edited by civilservant; Nov 22nd 2021 at 11:43 am.
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Old Nov 22nd 2021, 5:00 pm
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Default Re: Entering and leaving US on a H1B before starting employment

Thank you that is useful. Secondary question would be, is there any disadvantage to entering the US on a H1B earlier than otherwise. For example does that mean I am running down the clock on my visa? Or is that not how the clock on my visa works? Im never sure how the 6 year timeframe of the visa is counted (does it only count the days spent in the US or would it use up a month because I entered the US a month early). This may be a moot point if I need to start the job within 10 days.
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Old Nov 22nd 2021, 9:25 pm
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Default Re: Entering and leaving US on a H1B before starting employment

Hmm. I recall that you previously found it important under the national interest exception COVID travel ban that a denial obviated VWP eligibility.

I do find your posts of interest.

In your prior threads, there was mention that an attorney was involved. Have you asked her?
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Old Nov 23rd 2021, 12:06 am
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Default Re: Entering and leaving US on a H1B before starting employment

yeah you are right. I was as surprised as you are to be honest. I have a flight booked and everything for next week.

Anyway I have a call with my lawyer tomorrow so hopefully Ill get clarity on everything then.
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Old Nov 23rd 2021, 2:06 am
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Default Re: Entering and leaving US on a H1B before starting employment

Originally Posted by tariqbutt View Post
yeah you are right. I was as surprised as you are to be honest. I have a flight booked and everything for next week.

Anyway I have a call with my lawyer tomorrow so hopefully Ill get clarity on everything then.
It should be noted that “clarity” may not be forthcoming. Immigration law often has a certain degree of fuzziness and the course of action may be a judgment call.
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Old Nov 23rd 2021, 7:16 am
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Default Re: Entering and leaving US on a H1B before starting employment

8 CFR 214.1(l)(1):
An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.
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Old Nov 23rd 2021, 11:22 am
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Default Re: Entering and leaving US on a H1B before starting employment

Originally Posted by newacct View Post
8 CFR 214.1(l)(1):
Thanks I got busy with work yesterday and forgot to return to this!
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Old Nov 23rd 2021, 12:21 pm
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Default Re: Entering and leaving US on a H1B before starting employment

Lawyer advised me to cancel the trip. There was more detail than that, but that was the key point.
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