You are in the US, an H1B petition has been filed on your behalf and is pending, and you need to travel outside the US on a family emergency. What can you do? It is a common dilemma that many H1B workers find themselves in.
Let us examine when travel on H1B is safe while an H1B petition is pending, and the contexts when H1B travel outside the US can have an adverse effect on the H1B process.
A. Travel On H1B While An H1B Petition Is Pending
Foreign nationals in H1B status can travel outside the US and re-enter the United States as long as they have a valid H1B nonimmigrant visa stamp in their passport. Let’s examine the nuances of travel on H1B when an H1B petition is pending.
NOTE: It’s always safe to travel after H1B approval.
DID YOU KNOW?
Canadian H1B holders are visa exempt and can travel as long their H1B petition validity dates have not expired.
1. Travel on H1B While H1B Extension of Stay or H1B Amendment Is Pending With The Same Employer
If an H1B petition to extend and/or amend H1B status with the same employer is pending with U.S. Citizenship & Immigration Services (USCIS), the H1B employee may be able to travel on H1B if:
a.He/she is traveling on an unexpired H1B visa
b.He/she is going to return to the US before the expiration of the current H1B approval notice.
Simply put, if the individual’s original H1B status has not expired, then H1B travel outside the US is generally allowed.
2. Travel Outside The US When Beneficiary Does Not Have A Valid H1B Visa
If an H1B extension of stay petition has been filed and the employee does not have a valid H1B visa, he/she will be able to get an H1B visa stamp if travel abroad is undertaken and the underlying H1B petition is still valid.
If an H1B Amendment petition has been filed and the employee has already begun working pursuant to the terms of the amended petition, the employee cannot seek to obtain a new visa stamp until the amendment is approved. Travelling outside the US in this scenario is not recommended.
3. Travelling Outside The US While An H1B Change of Employer Petition Is Pending
If an H1B petition is filed for a Change of Employer and the H1B employee begins working for the new employer under AC21 H1B Portability, the H1B employee may be able to travel on H1B while the petition is pending if:
a.He/she is traveling on an unexpired H1B visa;
b.He/she was previously lawfully admitted and has maintained their H1B status; and
c.He/she is carrying the H1B Receipt Notice (I-797, Notice of Action) for the Change of Employer petition.
The H1B employee cannot travel outside the US, however, if he/she does not already have a valid H1B visa stamp in the passport. If the H1B employee travels out of the US and does not already have a valid visa stamp in the passport, he/she will need to wait for the H1B approval and then obtain the H1B visa stamp before being able to re-enter the US.
DID YOU KNOW?
If an H1B Change of Employer petition is pending but the employee has decided to remain with his or her current employer, then travel outside the US is not an issue as long as the employee has a valid H1B approval notice and H1B visa stamp (or can obtain one before re-entering).
4. H1B Petition Is Adjudicated While The Employee Is Travelling Outside The US
If the H1B Extension of Stay petition or Change of Employer petition is adjudicated while the H1B employee is outside the US, he/she has several options:
|H1B Petition Is Approved||H1B Petition Is Denied|
|If the H1B Extension of Stay petition or Change of Employer petition is approved
a.If the H1B employee can obtain the new approval notice and has a valid H1B visa stamp in the passport, the employee can present the new H1B approval notice and the previously issued H1B visa stamp at the Port of Entry. CBP should admit the H1B employee for the full validity of the newly approved H1B petition.
b.If the H1B employee enters the US without the new H1B petition approval notice, CBP will admit the employee based on the previously issued H1B approval notice and H1B visa, which will have a shorter expiration date than the newly approved petition. The employee must leave and re-enter with the new approval notice (and possibly need to obtain a new H1B visa stamp if the previously issued visa is no longer valid) or the employer must file a new extension of stay petition to extend the employee’s I-94.
If the H1B Extension of Stay is denied while the employee is outside the US, he/she should still be able to re-enter the US based on the still valid, previously issued approval notice and visa.
If an H1B Change of Employer petition is denied while the employee is travelling outside the US, the employee will not be able to return to the US if he/she has availed themselves of H1B portability.
My Case Scenario
Elizabeth is in the US in H1B status. She is working for XYZ, Inc. Her H1B status expires in 2 months and her employer has already filed an H1B Extension of Stay on her behalf. Elizabeth needs to go out of the country on urgent business. She has a valid H1B visa stamp in her passport. Can she travel outside the US?
Yes, Elizabeth will be able to travel on H1B visa and re-enter the US with the previously issued H1B visa stamp and H1B approval notice. Once she re-enters and after the H1B petition is approved, her status will be extended. If the H1B extension of stay petition is approved while she is abroad, her employer should send her the approval notice. She can then use the new approval notice and existing visa stamp to re-enter the U.S. CBP should give her an I-94 that matches the expiration date of the new approval notice.
B. Travel Outside The US While H1B Change Of Status Is Pending
Foreign nationals in valid nonimmigrant status may have an employer file an H1B Change of Status petition on their behalf. Lets examine the various scenarios when a need to travel outside the US arises while the Change of Status petition is pending.
NOTE: It’s always safe to travel after H1B approval.
1. Travel Outside The US When H1B Change Of Status Petition Is Pending
Travel outside the US while an H1B Change of Status petition is pending will result in automatic abandonment of the request to change status. In this scenario, USCIS may still approve the request for H1B by the employer, but the change of status request should be denied.
The beneficiary may only return to the US in their previous nonimmigrant status (if still valid or applicable) or the beneficiary must wait until the H1B petition is approved so that he/she can obtain an H1B visa stamp with which to re-enter the US.
DID YOU KNOW?
If a Beneficiary travels outside the US while an H1B Change of Status is pending, USCIS may inadvertently approve the change of status. Beneficiaries who returned to the US in the previously held nonimmigrant status should not rely on this approval. In order to activate the H1B, the beneficiary must leave the US and obtain an H1B visa stamp and re-enter or the employer must file a new Change of Status/Amendment petition.
2. Travelling Outside The US When H1B Change Of Status Petition Is Approved With A Future Start Date
If an H1B Beneficiary is travelling outside the US after an H1B petition is approved with a future start date but is re-entering the US before the validity of the H1B begins, the foreign national may enter the US in the previously held nonimmigrant status. The foreign national’s nonimmigrant status will then change to H1B as of the date of the H1B validity start date.
If an H1B Beneficiary undertakes a travel outside the US after an H1B petition is approved with a future start date but is re-entering the US after the validity of the H1B begins in another nonimmigrant status, the H1B Change of Status is effectively abandoned.
My Case Scenario
Elizabeth was in H4 status and an H1B Change of Status petition was filed on her behalf. While the H1B Change of Status was pending, she traveled outside the US. The H1B was approved when she was abroad. What effect does that have on her H1B? What were her options to return to the US?
When Elizabeth left the US while the H1B Change of Status was pending, the request for Change of Status was abandoned. Elizabeth would have had 2 options to re-enter the US:
- Obtain an H1B Visa stamp at the US Consulate once the H1B was approved and travel on H1B visa to re-enter the US in H1B status.
- Return to the US with a valid H4 visa to resume her H4 status. With this option, once the H1B was approved, she would have to leave the US again to obtain an H1B visa and re-enter OR her employer would have file a new H1B petition to change her status.
Travelling outside the US while an H1B petition is pending has numerous pitfalls and can be risky unless the employee is armed with the accurate information, and proper precautions are taken before undertaking the H1B travel outside the US.
If you have any queries about travel on H1B visa, or travel outside the US while an H1B petition is pending, or need assistance filing for a US visa or Green Card, contact VisaPro for a FREE Immigration Lawyer Consultation.
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