Re-entering the USA with EAD extension receipt and I-797B

Question

I have a situation to which I cannot find an answer by reading articles online. I'm hoping that someone here can help. Listed below are the documents I have.

1. I-797B (i.e. H1 was applied under consular process).
2. My current EAD, which expires on July 27, 2018.
3. I have filed for EAD extension and will get the soft copy of the receipt sometime next week and the hard copy probably 2 weeks from now.

My travel to India is currently planned from July 13 to July 29. So I am arriving 2 days after my current EAD's expiry with the EAD extension receipt. I will also have a newly issued I-20. Is it safe to come back on 29th July, and will these documents be sufficient for my re-entry?

EDIT: I have an F-1 visa now valid till 2020. I am on OPT now (EAD expires July 27) and have applied for STEM OPT extension just a few days back.

Answer 1

It sounds like you will be returning after your current EAD expires and while your STEM OPT extension is pending.

According to this OPT policy guidance, the answer seems to be no, you will not be able to come back while the new EAD is pending:

8.4.4. Can the student travel outside of the United States if his or her employment authorization document expires and the 17-month extension request is pending?

No, the student must wait to receive the new employment authorization document.

(Replace "17-month extension" with "24-month extension" as the guidance was written before it changed to 24 months.)

Answer 2

If you return to the US before your F-1 OPT EAD expires, it should definitely be ok. If you're trying to return after your EAD expires but with your new EAD pending, here's what it says on this F-1 travel FAQ from Homeland Security:

Can I re-enter if my request for OPT is pending?

Yes, but traveling during this time should be undertaken with caution. USCIS may send you a request for evidence while you are away, however, so you would want to make sure you have provided a correct U.S. address both to your DSO and on the application and would be able to send in requested documents. Also, if USCIS approves your OPT application, you will be expected to have your EAD in hand to re-enter the United States. Like a request for further information, USCIS can only send the EAD to your U.S. address.

Before traveling during OPT, it's always a good idea to check with your Designated School Official to make sure your I-20, SEVIS record, and OPT reporting requirements are all in order. In general it will help to bring a recently printed I-20 with travel signature, showing the most current OPT status (approved/pending). It may also help to bring proof of your OPT employment.

Note: You should also discuss your travel plans with your company's attorneys that filed your H-1B before you leave the US (better: before you buy your tickets) as travel can cause problems at certain points of the H-1B process. At the border, the consular H-1B application may make the officers more confused about your intentions, since you don't have an H-1B visa yet, so it's not valid for entry. Don't lie if asked about it, but be aware it won't help you enter the US without a matching visa. As you probably know, once your H-1B status begins, your OPT will end.