Entering on another visa while awaiting H-1B approval OK, but no work permitted

Q         What if an employee was selected in the H-1B lottery and outside the U.S. on June 24, 2020, waiting to receive the approval to obtain an H-1B visa, but had another valid visa to enter the United States?

A   H-1B nonimmigrants outside the United States on June 24, 2020, without a valid H-1B visa are affected by the proclamation and will need to wait until December 31, 2020, to be issued an H-1B visa. An exception applies to Canadian nationals, who don’t require a visa to enter the United States.

Nonimmigrants may enter the United States with another valid visa (e.g., B-1/B-2 visa), but wouldn’t be permitted to perform work for a U.S. employer while on the B-1/B-2 visa. Submission of another H-1B petition would be required, however, to change their status to H-1B after their U.S. entry because their status would be based on the visa category used for entry, and work must not commence until receipt of the H-1B approval.

Roger Tsai is a partner in Holland & Hart LLP’s labor and employment practice group who focuses on immigration law. Roger practices out of the firm’s Denver, Colorado, office and may be reached at rytsai@hollandhart.com.