Sticky situation - need some advice

[dopehead]

Hey guys,
Was hoping to get some opinions/suggestions/advice. So here's the situation:

- We have our CoPR's, which expire on May 1
- I am on an H-1B, wife is on F1/OPT
- I'm starting a new job in a couple of weeks, my H-1B transfer has been approved along with an extension, I-94 valid till 2020.
- The wife's OPT EAD expires on Jan 29th and she has applied for a STEM extension on her OPT. Based on average wait times it takes 90 days, but with the amount of RFE's being issued and with the federal government shutdown etc, it could take longer.
Her OPT extension application date + 90 days = ~April 16.

In my case I should be able to perform the landing and use AVR to get back safely to the US. She should be able to return on an AVR as well but we're concerned about what could happen to her since her extension application is pending. Her attorneys say it's definitely possible to re-enter while her extension application is in flight and that they would provide all necessary documentation. The Federal Register also confirms this is possible - link here.

So my question(s) -
- Is it worth the risk to perform the landing while her application is pending?
- Should we be risk averse, cut our losses and restart the whole process once her extension is approved?

I do know these questions are extremely subjective but I just want to hear everyone's thoughts.


cheers

EDIT: She was issued an acknowledgment receipt I797C by USCIS, confirming the dates of the requested extension.

 

[DEEPCUR]

If attorneys are saying so, then you should be definitely good. It is better to go and come back before 29th if your schedule permits. I'm not sure how this opt thing works, but if it's after 29th, she may not have a reason to be in US itself as she won't have any document proof. I believe CBP has no tool to know about any of the pending applications. If it's before that you could always say that you have applied for extension if they notice that only few days of validity left. The officers should be okay with that as many people enter US towards the end of visa validity too.

 

[dopehead]

If attorneys are saying so, then you should be definitely good. It is better to go and come back before 29th if your schedule permits. I'm not sure how this opt thing works, but if it's after 29th, she may not have a reason to be in US itself as she won't have any document proof. I believe CBP has no tool to know about any of the pending applications.

Thanks - I should have mentioned that she has an I-797C confirming the dates of the requested extension. Our worry about traveling right now is that since USCIS has acknowledged receipt of her extension request, she's already in an application-pending status

 

[DEEPCUR]

Thanks - I should have mentioned that she has an I-797C confirming the dates of the requested extension. Our worry about traveling right now is that since USCIS has acknowledged receipt of her extension request, she's already in an application-pending status

I traveled with pending amendment to do my landing. I'm awaiting the outcome of my amendment. However in the past, I have also traveled once back to India while amendment was pending, and I did get approval with i94. Attorney mailed the petition to my Indian address.

We also have had another member who traveled using AVR when his extension was pending and towards the end of current petition validity. I think he did fine.

As far as I know the only time travel with a pending petition creates problem is when someone had applied for change of status. If someone travels with change of status, the application would be considered to be abandoned as there is no status of the person in US. In all other cases, it should be okay to do so.

 

[DEEPCUR]

And even with receipt, I would strongly advise that you travel before 29th if possible because she'd still be valid OPT, no matter what. It definitely makes your case stronger and makes life easier for border agents too.

 

[dopehead]

And even with receipt, I would strongly advise that you travel before 29th if possible because she'd still be valid OPT, no matter what. It definitely makes your case stronger and makes life easier for border agents too.

Thanks DEEPCUR - our hesitation to travel prior to 29th is because I'm scheduled to join my new employer on the 30th and we wanted some buffer space just in case either of us has any issues during reentry.
Her lawyers and her school DSO confirmed that all she needs is a valid I-20 (which is the F1 equivalent of the I-797 for H-1B) endorsed for travel along with a valid F1 visa. We're probably going to wait till mid April, which is when her OPT extension is scheduled to be approved and then take it from there.

 

[albak]

This may not be specific to your situation but I had switched from F1-OPT to H1-B and traveled outside the country while my H1-B application was pending. My H1-B was approved but change of status was denied because I traveled outside.

However, in your wife's case she is only extending her already existing F1-OPT so theoretically, it should not be a problem. There is no need for an I94 in your wife's case since all F-1 I-94's are Duration of Status or D/S. This means that she is authorized to enter the country as long as her I-20 says she can. If you have obtained a new I-20 for the F-1 extension, then it shouldn't be a problem. Just my 2 cents