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I have the H1B which has the validity date on the passport is 15 OCT, 2021. My actual starting date is 10 Jan, 2022. On the I-797, it is said that I am only allowed to come in 10 days before my starting date as the earliest date.

My HR at my academia institution told me that I am able to enter the country as a visitor before my starting date. However, when I arrived at the airport, the border security told me I cannot come as the H1B until 1 Jan, 2022 as on the paperwork. They provided me an emergency visa waiver B2 with form I-193 until 12 Jan, 2022 and advise me to change this to H1B so that I can start the payroll for my work.

I am wondering if I can change the classification inside the US on time and if I go out of the US, and go back around 1-10 Jan, 2022, will my B2 be deactivated when I leave the US and the new H1B will be started when I come back?

Your help is really appreciated!

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I am wondering if I can change the classification inside the US on time

Yes, it's possible to do Change of Status in the US. But to do Change of Status into H1b status, your employer would have to file another I-129 H1b petition, requesting Change of Status. They would probably have to do it with premium processing for you to get it by January 2022.

if I go out of the US, and go back around 1-10 Jan, 2022, will my B2 the deactivate when I leave and start the new H1B when I come back?

Status is something that you only have while inside the US. So it is always the case that your status will cease when you leave the US (this is not just for B2 but for all nonimmigrant statuses). The next time you seek to enter the US, you will enter on the basis of a visa -- in your case, your H1b visa, to seek to be admitted into H1b status. As I understand it, you do not currently have a B2 visa (that's what the waiver was for), so if in the future you left the US and wished to enter the US into B2 status, you would need to get a B2 visa at that time.

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  • Thank you, so I am wondering the employer would have to file another H1B I-129 even with the already existing H1B and I-129? Dec 6, 2021 at 8:51
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    @user2842390, Unfortunately, yes. The only way to change status to H1B is to request that on the I-129 petition. Since your employer didn't (couldn't) do that on the original I-129 they would need to amend the I-129, which means filing a new one. It is probably easier (and cheaper) just to leave the US and reenter in H1B when you are able; a short trip to Canada or Mexico would be sufficient.
    – Dennis
    Dec 6, 2021 at 16:48
  • Thank you Dennis, I wonder if the B2 will be "finished" when I leave the US? In my case, that is emergency visa waiver, not sure if it is actually the B2 visa as @user102008 mentioned above. I found here that the actual B2 can re-enter the country so I am worried even if I leave, it is still effective until 12 Jan, 2022. In that case, I cannot reenter with the H1B (effective on 10 Jan, 2022) and start working. Also is it possible to get the visa to Canada and Mexico in my case? Thank you. Dec 6, 2021 at 19:03
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    @user2842390: As I understand it you don't have a B2 visa -- in an extraordinary act of leniency the officer admitted you on B2 anyway, waiving your inadmissibility for not having the right type of visa. You should not expect to be able to enter on B2 without a B2 visa in the future.
    – user102008
    Dec 6, 2021 at 20:43
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    @user2842390, Most nationalities are permitted to enter Mexico if they have a valid US visa in their passport. Furthermore, Mexico maintains a zone along the entire US land border that people are permitted to enter from the US without inspection, so if you chose to enter by land you are unlikely to encounter Mexican immigration at all. If you want to do that you could walk into Mexico, eat lunch (or not) and return to the US inspection station with most of your time in Mexico being spent in the queue for the latter.
    – Dennis
    Dec 7, 2021 at 16:14

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