Travelling while an H-1B Petition is Pending at USCIS

Travel While an Extension of H1B Status is Pending

An H1B nonimmigrant employee is permitted to travel while an application for Extension of the H-1B Status is pending, provided they are traveling on an unexpired H¬I B nonimmigrant visa, except where exempt under the visa exemption regulations, and can show that they are returning to the U.S. to continue the previously approved H1B employment.

Under Section 222(g) of the Immigration and Nationality Act (“INA”), a nonimmigrant alien that stays in the U.S. beyond the expiration date indicated on their I-94 will cause their visa to become automatically revoked, and consequently the alien will not be able to return to the US unless he or she obtains a new visa. However, the alien’s visa will remain valid where a timely, non-frivolous, application for Extension of Status or Change of Status is filed, and where the alien has not engaged in unlawful employment.

Travel While a Petition is Pending for a Change of H-1B Employer

An H1B nonimmigrant employee is permitted to port their H1B visa to another company, pursuant the American Competitiveness in the Twenty-first Century Act of 2000 (“AC-21”) upon the filing of an 1-129 petition for the subsequent employer.

Under this scenario, the H1B employee is permitted to travel on the previously issued visa, where they can show:

1) they are otherwise admissible to the U.S.;

2) they are in possession of a valid unexpired passport and visa, including a visa endorsed with the name of their previous employer as petitioner;

3) they can show that they have previously been admitted in H1B status; and

4) they are in possession of the Form 1-797 receipt notice showing that a new petition has been timely filed.

The new petition is not a substitute for a valid visa.

A new visa cannot be issued for the new employer until the new petition is approved.

Therefore, if the employee’s original visa has expired, and they leave the U.S. prior to the new petition being approved, they will be forced to remain outside the U.S. until the new petition is approved.

In these cases it is recommended to use the USCIS Premium Processing service, under which the petition should be adjudicated within 15 calendar days.

The Last Action Rule

One issue that arises when an alien travels on their H1B visa while a petition for Extension of Status or for Change of H1B Employer is pending is the issuance of two 1-94s and the question of which 1-94 is controlling.

This rule states that the 1-94 with the latest effective date is the controlling document, and the applicant’s period of authorization and H-1B petitioner are determined by this 1-94.

Because of the last action rule, aliens with pending applications for Extension of Status, or a Change of Status with a request for a later expiration date, should be warned that if the application is approved while they are abroad and they return to the U.S. on their original visas the new 1-94 issued upon their entry into the U.S. will trump the I-94 attached to the Notice of Approval and the 1-94 with the earlier expiration date will be controlling. In such situations, a new application for Extension of Status will be required.

A beneficiary for an application for Change of Status will be considered to have abandoned their application if they travel while the application is pending.

Travel When the Petitioner has Undergone a Change in Ownership

There are times when an H1B employer/petitioner is subject to ownership changes, such as a merger or an acquisition.

In some instances the new organization can qualify as a “successor-in-interest” to the original petitioning company, and an amended petition is not required.

An H1B employee who works for the new corporate entity claiming exemption from the requirement to file an amended petition can continue to travel on an existing valid H1B visa where he is otherwise admissible and presents a letter from the new corporate entity stating that:

1) the flew corporate entity has succeeded to the interests and obligations of the original H- 1B petitioning employer; and

2) the terms and conditions of employment of the H1B nonimmigrant remain the same.

Travel While a Change of Status to H1B Nonimmigrant Status is Pending

For many nonimmigrants, travel on their nonimmigrant visas will result in the abandonment of a pending Form 1-485 Application for Adjustment of Status.

These nonimmigrants must apply for, and wait to receive, an 1-512, Advance Parole Authorization prior to traveling outside the U.S., otherwise their 1-485 is automatically abandoned and they may find themselves stuck abroad unable to return to the U.S.

However, H1B nonimmigrant aliens with valid H1B visas are eligible to continue traveling on their visas, while their Form 1-485 Application for Adjustment of Status is pending with the USCIS for adjudication.55 The reason being is that the H1B is a “dual intent” visa, that permits the alien to maintain H1B status even though an immigrant visa or permanent residency application has been filed. The alien must present their valid nonimmigrant visa, provide evidence that they are returning to the U.S. to continue employment with the petitioning employer, and must remain eligible for the H status upon return to the U.S. Regulations previously required that the alien also present the original Form 1-797 Notice of Receipt for the Application for Adjustment. However, this requirement has been removed from the regulations, effective November 1, 2007, as USCIS was not always able to issue these notices in a timely manner and CBP did not always request them.

While an H1B nonimmigrant employee is not required to present an 1-512 Advance Parole Authorization, if the H1B nonimmigrant possesses both a valid 1-512 and a valid H1B visa nonimmigrant visa, the alien has the choice to enter the U.S. using either the H1B visa or the I-512. In order to enter on the H1B visa, they must be able to show that they remain eligible for H1B visa status, as explained above.

If the alien chooses to enter the U.S. using the I-512, they are accorded parolee status, and will usually obtain a one-year expiration date on their 1-94s. However, if they fail to obtain separate employment authorization, they will not be considered to have worked without authorization, if they continue to work for the H1B visa employer. The alien will also be eligible to apply for an extension of their H1B status, which will have the affect of terminating the grant of parole and admitting the alien in H1B visa status. Choosing to enter the U.S. on the I-512 does not bar the alien from choosing to enter the U.S. on their valid H1B visa at a later date as the alien is able to alternate between the two.

The applicant’s choice to enter on the 1-512 can have a serious affect on their spouse and children in the U.S. on H-4 derivative status, as 8 CFR 245.2(a)(4)(ii)(C) states that “The travel outside of the Unites States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceedings and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1B or L-1 visa status and the alien remains otherwise eligible for H-4 or L-2 visa.

Therefore, if the H1B visa nonimmigrant alien chooses to reenter the U.S. on the I-512, they are no longer in H-I B status, which means their spouse and children may no longer be eligible to receive H-4 visas and travel outside the U.S. by virtue of being H-4 derivatives. Therefore, their travel abroad without an I-512 could be construed as an abandonment of a pending application for adjustment of status.

Contact us for more information about a H1B visa, or any other immigration law question. Our professional team will reply promptly.

Related Links:
H1B Visa Cap / Quota for FY 2018
H-1B Visa Overview
H-1B Visa Renewal / Extension
H-1B Visa Transfer
Amended H-1B Visa
New H-1B Visa, Cap Exempt
H-1B Visa for Entrepreneurs
H-1B Visa for Teachers
H-1B Visa Attorney Fee
H-1B Visa Complete Do it Yourself Kit

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17
Used the services of this office for Green Card through AOS and was mainly in contact with John Dorer. I was unsure about their services at first, considering the unusually affordable cost but was pleasantly surprised by their prompt responses to all our questions and their timely preparing and handling of our documents! Will be using their services again when filing for removal of condition! Definitely recommended!
Lisa Lorentzon
Lisa Lorentzon
22:56 10 Dec 17
my wife and i worked with John Dorer from Marc Taylors Associates. He's services were awesome and amazing. i would recommend him to anybody applying for their permanent resident to work with them.
Seun Olanrewaju
Seun Olanrewaju
15:33 22 Dec 17
I was very pleased with their professional service from the beginning to the end for my citizenship application. I am a professional working in the higher education and somewhat familiar with the immigration process. For that reason, I was thinking of applying it by myself but I found Taylor and Associates whose service fee is very affordable and worth of my time. Indeed, they found some of minor mistakes in my application, which could have delayed much longer for my application process. Luckily, they caught and fixed them immediately. Their communication was excellent. In fact, everything was very smooth. Even after I had the approval notice, they followed up with valuable advices. I strongly recommend their service if you need immigration services. Thank you Marc and John for your excellent services.
Dominic Choo
Dominic Choo
17:12 23 Dec 17

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