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I am on an H1b visa residing in the USA. I have a valid I-797 that is expiring in 2024 but my H1b stamped got expired recently. I am planning to visit Spain for 6 days for an important event in January and from there I am planning to go to India to get my Visa renewed/ stamped.

I am wondering if the Spain consulate in San Francisco will give me the Schengen Visa. I am reading mixed reviews for other countries consulates like Italy, France, and Germany. Some of the people who were in the same boat as me got the visa and some did not. Can someone please guide me?

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If I am reading the definition of the Form I-797 correctly, it only means you are eligible for an extension (after your first 3 years, for a further 3 years).

Your present H-1B visa has expired.

But the consulates of Spain, Germany and Italy (based on the information found on their San Francisco consulate sites) require proof of a valid US resident visa with a minimum of three (3) months validity after returning from the Schengen Area.

Since you don't have a valid US resident visa at the time of the visa application, it is likely that they will refuse to accept the application.

So you either renew your H-1B visa before making the application or ask the Spanish consulate if an application is possible since you are planning to return to your home country after leaving the Schengen Area.


Receipt Notice: Form I-797, Notice of Action
This I-797 form is simply a receipt informing you that your application or petition has been approved. Note that this is just the receipt, not the official document. Therefore you cannot use this to travel, get a job, etc.


How Long an H-1B Worker Can Stay in the United States | Nolo
The H-1B visa is a nonimmigrant visa. That means it does not allow its holder to remain in the U.S. permanently, as an immigrant, but instead expires after a specified period of time. When one's H-1B status expires, the H-1B worker must either leave the United States, obtain an extension, or apply for a different status. If the worker simply stays in the U.S. past the expiration of the H-1B status, the worker loses legal status in the U.S. and can be removed (deported).


Spain, Consulate San Francisco - Schengen Tourist Visa Guidelines.pdf (PDF)
All non-US citizens who need a visa to enter the Schengen Area must have a US visa or a Permanent Residence Card with a minimum of three (3) months validity after returning from the Schengen Area.

Germany - Consulate San Francisco - Checklist: Schengen Visa Requirements (PDF)
Original of valid US alien registration card or valid US resident visa (type A, E, F plus endorsed I-20, G, H, I, J plus J1 document, L, O, R) and one copy

Italy - Consulate San Francisco - Schengen Tourist/Transit (PDF)
Proof of legal permanent residence in the United States (only non-U.S. citizens): U.S. Alien Registration Card or valid long-term U.S. visa, valid for at least three months beyond the intended departure from the Schengen member states.

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  • Thanks for replying Mark. Just want to let you know that I-797 controls the validity of my staying in the USA. So I am currently legally staying here till 2024. However, the H1b stamp controls my entry to the USA. So If I go to any other country, I cannot come back unless I stamped/renewed my H1 visa because it is currently expired. That is why I am planning to go to India after my visit to Spain. Oct 16 at 7:55
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    @AmanMahajan The point is that they require proof that you can return to the United States after departure from the Schengen Area, which you don't have at present. Oct 16 at 8:05
  • Got it. Even though I am clearly going to my Home country (India) after I leave Schengen Area. I have booked tickets as proof. Oct 16 at 8:17
  • @AmanMahajan This situation may very well be known to them, but not covered in their information PDF's. So the only way is to ask them directly or supply the proof when making the application which should be done in a timely mannor so that you can plan properly. Oct 16 at 8:30

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