# Visiting USA between H3 and H1 visas?



## DrDan (Jul 6, 2009)

Hi everybody! I wonder if anybody can help?

I am a British citizen currently in the USA on an H3 visa which has just expired. I understand I need to leave the country within 10 days. I have had my petition for an H1b visa accepted - so once I've had my interview at the US embassy in London I'll hopefully have the new visa in place for October 1st. Basically I'm in a situation where I now have 3 months off. I have a small apartment here in States (rented), a car (owned) and some money saved up. I'd like to spend some or all of the next 3 months in the US to do some traveling and visit friends.

In my naiveté, I drove up to Canada and came back into the States on the last day of my H3 visa and asked them for entry under the visa waiver program (I actually thought I HAD to leave the country by the last day of my H3, I didn't know I had 10 days "grace"). I got dragged into the office and after a long wait I got lectured at by 2 young officers telling me I was trying to cheat the system, that I should go back home and stay there and that if I tried to come back to the USA before my H1b was granted then I would be refused entry and that would jeopardize my H1b application. I explained that I wasn't trying to cheat the system that I was just trying to be honest, within the law and maintain myself under the correct visa classification. After some more lecturing I politely asked to speak to a Supervisor. He was much more sensible (older, more mature) and said that the actual problem was that Canada didn't count as leaving the country. He told me that if I flew back to the UK I could indeed come back in on the visa waiver program. They ultimately let me back in on my existing H3.

So my questions are these:

1) Who's right? Once I go home over the next few days, would they let me back into the country between now and October 1st on the visa waiver program?

2)Would it make a difference how long I stayed at home before coming back in as a tourist?

3) Could this Canada "experience" get marked on my immigration record by the 2 younger officers somehow as a black mark against me? Or could there now be a note on file saying "Advised not to come back to USA before Oct 1"?

4) If I tried to come back on the visa waiver program and they denied me entry, would that affect my H1b application process?

Thanks in advance for all help and advice with this.

Dan.


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## Fatbrit (May 8, 2008)

1) Who cares who's right? It's not like you have any rights here so whatever the CBP officer decides on each individual occasion is whatever's right. Maybe they'll let you back, maybe they won't. Nobody knows because it's at the whim of the CBP officer.

2) Probably. But we're where a year out would be better than a month out rather than a month better than a week.

3) Yes -- they have a memo system and they use it.

4) Probably not unless you do something really stupid like lie.


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## DrDan (Jul 6, 2009)

Thanks for your opinions Fatbrit. So do you think that the bottom line then would be to try it - because apart from the cost of the flight there's nothing to lose?

Also - if they did deny me entry, does that make future entry under the visa waiver program difficult (would it have to be declared it under the "have you ever been denied entry into the US box" on any future trip to the US)?


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## DrDan (Jul 6, 2009)

Oh - sorry - another question. If I went home now and got the new H1b visa in place first thing (apparently the current appointment wait time in London is only 7 days) - could I then still come back in before Oct 1 on the visa waiver program for the purposes of tourism?


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## Davis1 (Feb 20, 2009)

The rules are very clear on H1 .you can arrive up to 10 days early to take up your position


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## DrDan (Jul 6, 2009)

Thanks for the info - not what i was asking though. I was asking about coming here for vacation under the vwp not to take up my position under the H1.


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## Davis1 (Feb 20, 2009)

DrDan said:


> Thanks for the info - not what i was asking though. I was asking about coming here for vacation under the vwp not to take up my position under the H1.


If you want to take a 2 wk vacation in say Aug
you should have no problems 

If you intend to use a vacation as an excuse to get it early..
Its a game played every year... the POE always wins


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## DrDan (Jul 6, 2009)

Take your point - thanks for your help...


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## Fatbrit (May 8, 2008)

DrDan said:


> Thanks for your opinions Fatbrit. So do you think that the bottom line then would be to try it - because apart from the cost of the flight there's nothing to lose?
> 
> Also - if they did deny me entry, does that make future entry under the visa waiver program difficult (would it have to be declared it under the "have you ever been denied entry into the US box" on any future trip to the US)?


You're playing with fire. You've just had a long spell here. The H1b will give you the opportunity to live here some more, and the possibility of permanent residence. Why push your luck?


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