jenlgw wrote:-Is there any way that I can get back to the US with my approved petition (I94) and expired work visa?
- I still have a valid tourist visa stamped on my passport. Is it possible to enter with the tourist visa and later go to Canada to stamp the H1B on the passport? Am I going to be in trouble because I'm going to be working but entered with a tourist visa?
You can only be admitted into the US on a specific visa classification i.e. tourist B2 or employment H1B with the corresponding I-94 endorsed as appropriate. You don’t have H1B visa so you won’t get admitted in that category. If you refer to the I-94 that came with the I-797 petition then that should have been taken from you by the airline when departing the US. Even if it was not collected then it may not be used to re-enter the US. The only time I-94 may be used to re-enter the US (aka automatic visa revalidation) is when you travel to Canada (or Mexico and adjacent Islands in the West Indies)
only (so no onward travel and return to these countries then to the US again) and:
1. Your previous visa has expired not been revoked/ cancelled.
2. Travel period (and hence re-entry into the US) is no longer than 30 days.
3. You are not a national from countries designated as state sponsors of terrorism i.e Iran,Iraq, Libya, Syria, North Korea, Sudan, Cuba.
4. You have not applied for a visa in Canada (Mexico or the Islands) which has been refused.
5. You are not otherwise inadmissible.
there may be other conditions but these are the main ones I recall.
jenlgw wrote:- Is there another option for me to go back to the US earlier? I just can't believe that because they didn't want to look at my case (because of the time) I'm about to lose my 4 years work, my relationship, my belongings, etc. I've got my apartment and my things to take care in the US!! Please help, I'm desperate.
Technically you may return to the US as a tourist since your B2 visa is valid. Entry as a visitor requires you to have non immigrant intent supported by strong/compelling ties to a country outside the US to return to after your trip. H1B = dual intent i.e. non immigrant and immigrant. You seem to have been on H1B status 4 years and have strong roots in the US to include property. Ties to Brazil in contrast seem significantly less compelling. The Inspector at the Port of Entry will be minded to believe you will go to your new job even if admitted as a tourist (your post alludes to you thinking this already) – that you have a valid H1B approval only adds to his/her reasoning. I don’t believe you will be admitted. Even if you do get admitted on B2 working is being in breach of status so its pointless. An added risk is that the inspector may view your proposed manner of entry as fraud – this could easily lead to expedited removal proceedings and a ban from the US for 5 years.
IMHO the best strategy is to try and work as best as you can with with the consulate serving your place of residence in Brazil and see if they can help you out – there may be people who cancel their appointments. If that fails try other consulates in Brazil. Your plan to apply in Canada or indeed any other 3rd country is dependent on:
1. Whether you will be admitted into that country…after all they want to makes sure you are a bona fide visitor so will need to demonstrate ties to Brazil again. Canada is particularly wary of those seeking entry who have resided in the US long term and are trying to obtain US visas in Canada. Where such US visas are refused there has been historically often very little incentive to depart Canada.
2. Whether the relevant US consulate accepts applications in the H1B class from non residents.
Note that if your H1B in a 3rd country e.g. Canada is refused all your future visa applications (I believe any category) must always be made in Brazil.
Rogerio wrote:Any chance you can send an email to your local Member of Paliament (or whatever the title) in the US and ask him/her to intervene on your behalf? In the UK, this normally helps to steer the government bodies into working sensibly when insane attitudes like the one you're experiencing happens.
I believe the US equivalent is the congressman/woman. Agree a good idea in principle and may speed up the application. I would think the employer and in particular their attorneys involvement may be of great help were they to follow this up. Note that like in all governments politicians are wary to be seen as trying to infleunce/direct operational policy....there may be some issues with the congressman trying to tell the State Department (consulate) to issue a visa by pushing the applicant up the line.
This is my 0.02c from what I know on the INA. Like Rogerio recommends OP getting in touch with given links a worthwhile exercise to get a 2nd opinion.
