Question about H1B Stamping in Toronto, Canada. (Was on F-1)?

Question

I came here on F-1 in Jan, 2005. I was doing Masters in Public Health in Chicago. I am a Doctor back home in India and I gave USMLE after coming here and obtained a residency position in a hospital in Chicago which started in 2007. I am on H1B right now which is sponsored by Hospital. Before getting H1B approval, I went to India as I was waiting for my Illinois Medical License to arrive. Somehow my license got delayed and I had to come back on F-1 as my residency was starting in 8 days. Me and my wife successfully re-entered on F-1 and F-2 respectively. The day I came back to USA, I got my License and then my lawyer applied for H1B. I got my H1B and H4 approval in 14 days. Now I want to go for stamping in Canada. Would it be a problem for me as I had my visa got converted from F-1 to H1B in just 14 days though I was on F-1 from 2.5 years. Can it be considered a fraudulent to come back on F-1? I had no option because if I would have waited, I would have not even come by August to USA.

Answer 1

Although you really should not have re-entered the US using the F visas since you were no longer a student, there are very few consular officers who will hold you us for that reason, since both the visa and your I-20 form were still current.  Your re-entry will not be considered fraud.  If asked - and only if asked - explain.

Answer 2

Fraud occurs when someone knowingly lies to obtain benefit or advantage or to cause some benefit that is due to be denied.

212(a)(6)(C)(i) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

When you last entered the U.S., you presented documents and answered any questions in such a way as you appeared to the inspecting officer to be coming into the U.S. as a returning student.

Did you resume your studies? Probably not. If not,  I'd say there is a strong argument that you misrepresented yourself to gain admission into the United States.

Aliens can change status from one nonimmigrant status to another under section 248 which says: "The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status...."

It appears that you changed status after your return as an F-1, but you were not continuing to maintain the status (F-1)from which you sought the change.

If you represented yourself as a F-1 nonimmigrant who was maintaining his status, and you were not maintaining F-1 status, that would be another misrepresentation.

The approval notice for the H-1B is the fruit of the fraud.

Now you want to apply for an H-1B visa using a notice of approval which was obtained by fraud which means that you plan to obtain the visa by presenting a document that is the fruit of the fraud.

Now, you tell us. Did you misrepresent yourself to gain an immigration benefit?