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 the H1B visa. Our professional team will reply promptly.

usavisanow.com – Immigration Law Office of Eran Regev, Esq.

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