This article discusses common situations and important notices for activating H-1B status abroad.
Applicable Situations
Companies usually choose the option of consular process for employees in the following situations:
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The applicant is outside the U.S. (e.g., at a Indian branch of a U.S. company) and needs to obtain an H-1B visa before entering the U.S.
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The applicant needs to travel abroad between April and October.
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If the applicant's OPT expires after October 1, they can choose to complete their OPT first and then activate H-1B status by leaving and re-entering the U.S.
Choosing Consular Process When Submitting the Application
If you want to choose this option, your employer must specify this when submitting Form I-129 (Petition for a Nonimmigrant Worker). If not explicitly chosen, the system will default to the "change of status" option.
As shown in the picture below, in Part 2, #4, "a" indicates the "consular process" option, while "b" indicates the "change of status" option.
Re-entering the U.S.
Once the I-129 petition is approved by USCIS, the applicant will receive an I-797B approval notice. If the applicant is in the U.S. when receiving the I-797B, they must leave the U.S. and then re-enter to activate their H-1B status by the start date specified in the notice.
Upon leaving the U.S., the applicant's previous status will become invalid. You must submit Form DS-160 and complete a visa interview. After passing the interview, you can re-enter the U.S. with the H-1B visa stamped in your passport.
Note:
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You cannot re-enter the U.S. on an H-1B visa more than 10 days before the "Start Date" indicated on the I-797.
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After your previous status becomes invalid, you are not legally permitted to work in the U.S. before the H-1B start date.
Q&A
1. Can the H-1B activation option be changed after I submitted Form I-129?
No, it cannot be changed later.
2. Is it necessary to return to my home country to activate the H-1B abroad?
It's not necessary. Many applicants choose to obtain their initial H-1B visa in Mexico or Canada. As long as you can schedule an interview in a third-party country, you can obtain your H-1B visa there.