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Can You Travel During H1B Transfer | Can I Travel Out Of The Us While My H-1B Petition Is Pending? All Answers

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You must not travel outside of the U.S. while the petition is pending. Leaving the country while USCIS is reviewing your petition will cause USCIS to consider your petition for a change of status to be abandoned.H1B Change of Status is Pending Risks

You can travel outside the US while H1B change of status is pending. The risk of travel is that USCIS will automatically abandon your Change of status request.Travelling While an H1B Transfer is Pending

After the new petition has been approved, the visa holder must present an approval notice from USCIS evidencing the approval of the change of employer in addition to the visa.

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Can I travel out of the US while my H-1b petition is pending? – Can you travel during H1B Transfer, details of this topic

Traveling while H-1b petition is pending is allowed but you should make sure that you have the proper visa to make entry into the United States and be ready to travel out of the US again for H-1b visa stamping after it is approved. This is because USCIS cannot approve any change of status (From F-1 to H-1b, for example) if the applicant has departed from the United States. But worry not! The H-1b petition will not be impacted by the travel

See more information on the topic Can you travel during H1B Transfer here:

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Can I travel out of the US while my H-1b petition is pending?
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  • Author: Jack C Sung
  • Views: 2,209 views
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  • Date Published: Jun 6, 2018
  • Video Url link: https://www.youtube.com/watch?v=4q53LhRu_C4

Can I travel when my H1B transfer is in progress?

H1B Change of Status is Pending Risks

You can travel outside the US while H1B change of status is pending. The risk of travel is that USCIS will automatically abandon your Change of status request.

Can I travel to India while h1 transfer is in progress?

Travelling While an H1B Transfer is Pending

After the new petition has been approved, the visa holder must present an approval notice from USCIS evidencing the approval of the change of employer in addition to the visa.

Can I travel during H1B visa?

You can travel internationally and reenter the U.S. while your H-1B status is being extended or transferred from one employer to another, provided you have a valid I-797 Approval Notice and a valid H-1B visa (unless visa-exempt or eligible for automatic visa revalidation).

Can you travel with H1B visa from another company?

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).

How long does a H1B transfer take?

H1B Transfer Processing Time

The processing time for the H1B transfer documents is dependent on the method of processing. The processing time of a H1B visa transfer takes 1 to 4 months to process under a regular procedure and 15 to 30 days for premium processing.

How many days can I stay outside USA on H1B?

If the remote stay abroad is longer than 60 days, then a new LCA & an amended H-1B petition must be filed with the DOL & USCIS.

Can I stay in India for 3 months on H1B?

Working from India on US payroll is not allowed unless you have some US work visas like H1B or L1 and for a short duration of 1 to 5 months. Many people who exhaust their H1B 6-year quota leave the USA. They wait outside the USA for their H1B extension result and work remotely as an IT worker from their country.

Can you leave the country on H1B?

Traveling during your H-1B status. You can travel abroad during your H-1B status. Your trip may be personal (to visit relatives, for example) or professional (to attend a conference or work with colleagues overseas). These recommendations will help ensure that you have a smooth trip.

When can I travel after H1B approval?

You may enter the U.S. ten (10) days before the start date on your I-797 approval notice. At the port of entry, you may request that your I-94 card be issued with an additional ten (10) days beyond the expiration data of the I-797 approval notice.

Can I travel to USA with less than 6 months on H-1B visa?

When traveling on the H-1B visa, you will require the following documentation to reenter the U.S.: Valid passport with at least 6 months of validity at the time of admission to the U.S. Valid H-1B visa stamp in your passport, obtained from a U.S. Consulate abroad.

Can I stay in the US while waiting for H-1B?

If the H-1B petition is pending beyond October 1, you can remain in the U.S. based on the pending change of status petition. However, you must stop working until the H-1B petition is approved.

Can I transfer my h1 immediately after approval?

There is no time limit for the employee to move to the new job after having his petition approved. The start date for the new employer can happen at any time between petitioning for transfer, upon receiving the Form I-797c, and the expiration of the H1b status.

Can H4 travel while H1B Transfer applied?

H1B transfer will not affect the H4 travel and your wife would need a valid H4 visa in her passport to re-enter USA. My suggestion is not join the new employer until the transfer is approved.

Travel while an H-1B Petition is Pending

Whether or not you may travel internationally while your H-1B petition is pending depends on a variety of factors:

If our office filed a change of status petition for you: You must not travel outside of the U.S. while the petition is pending. Leaving the country while USCIS is reviewing your petition will cause USCIS to consider your petition for a change of status to be abandoned. Your underlying H-1B petition may still be approved, but you would have to depart the U.S. and apply for an H-1B visa abroad to re-enter the U.S. in H-1B status before you could start your H-1B employment.

Once USCIS approves your change of status petition, you may travel internationally. Your H-1B status will take effect on the date that was requested.

While travel, as outlined above, is permissible, you may encounter difficulties when re-entering the U.S. or when applying for a visa for your current status. Therefore, we recommend that you do not travel internationally from the moment your department starts the H-1B process with our office until your H-1B status takes effect. Traveling while an extension of status petition is pending with USCIS is permissible. Please note that you must be in the U.S. when the H-1B petition is filed with USCIS.

You must alert the International Center of any travel plans while your H-1B extension is pending with USCIS.

If the extension is approved while you are abroad, you must re-enter the US using that Approval Notice. This means the documents may need to be sent to you while abroad. If you re-entered the US on the basis of your old Approval Notice, you would only be admitted until the expiration date of the old H-1B Approval Notice and you would likely have to travel again to have this corrected.

If your H-1B extension is pending with USCIS and your current H-1B status has expired, you must not travel internationally because you will need a valid H-1B approval and visa to re-enter the country. If you must travel while your extension is pending and your H-1B status has expired, you will need to remain outside of the U.S. until your H-1B petition is approved. Your case may be converted to premium processing to accelerate the adjudication process.

Travel while H1B Pending (Extension, Transfer, Amendment, COS)

Listen to this article

H1B Travel when Application Pending with USCIS: Travelling while your H1B application is pending approval is risky.

We do not recommend traveling unless you have a real emergency to go out of the USA especially when the Amendment is pending.

We recommend upgrading your H1B application to premium and get approval within 15 days before traveling to be on the absolute safe side.

H1B Travel Allowed US Entry Risk Amendment Yes May be denied if started working with H1B Amendment. Extension Yes No entry without Valid H1B stamp. Change of Status Yes No entry without valid H1B or non-H1B Visa. Transfer Yes No entry without Valid H1B stamp.

You can learn quickly by watching this short story about traveling while H1b is pending.

H1B Change of Status is Pending Risks

You can travel outside the US while H1B change of status is pending.

The risk of travel is that USCIS will automatically abandon your Change of status request.

H1B Change of Status application status at the time of re-entry to USA:

#1 H1B COS APPROVED

You will have to get the hard copy of your approved H1B’s i797 and apply for an H1B visa at the US embassy before you can enter the USA with an H1B visa.

This is because your Change of Status was automatically abandoned by USCIS when you stepped out of the USA.

#2 Change of Status DENIED

If the H1B COS is denied while you are traveling, you can enter the USA only with any other visa you have.

#3 COS to H1B PENDING

You cannot enter using H1B status as the application is still pending. You need some other valid visa to enter the USA.

The underlying H1B application will be approved (if approved) with consular processing meaning that you will have to go to the US embassy to get H1B stamped in your passport and then re-enter the USA.

H1B Extension is Pending USCIS Decision

You can travel outside the USA during pending H1B extension. Make sure you have an existing H1B visa that is valid on the date of your re-entry to avoid trouble.

If your current H1B visa has already expired and you travel, you will NOT be able to enter the USA until your pending H1B extension is approved.

Example:

You can travel to India while H1B extension is in progress and visa is still valid for re-entry.

H1B extension status when you re-enter USA:

#1 H1B Extension APPROVED

You will have to get the hard copy of your approved H1B’s i797 and apply for an H1B visa at the US embassy before you can enter the USA with NEWLY approved H1B extended petition.

You can still enter using your OLD valid H1B (if any) but, your i94 will be restricted to old H1B’s expiry date.

This will be a problem as you will have to either file another H1B extension to get a new i94 or travel outside the USA again and get extended H1B stamped in your passport.

#2 Extension is DENIED

If the H1B extension is denied while you are traveling, you can only re-enter the USA if your existing H1B visa is still valid at the time of re-entry.

#3 PENDING Extension

You can still enter using your OLD valid H1B (if any) but, your i94 will be restricted to old H1B’s expiry date once it is approved.

You may not get a new i94 with approval.

H1B Amendment is Pending Result

You can travel internationally while your H1B amendment is still under process at USCIS but we recommend to NOT travel as re-entry risk is very high.

If your amendment status is approved, denied, or pending while you are outside the USA:

#1 APPROVED Amendment

You will need to get the new physical i797 approval shipped to you to re-enter the USA.

#2 H1B Amendment DENIED

You can re-enter the USA using existing H1B approval and stamp but will have to only work using the non-amended H1B.

#3 Amendment is PENDING

You can re-enter the USA using existing H1B approval and stamp but immigration officer will ask tough questions.

You may be denied entry if you have already started working based on the H1B amendment receipt. This is a very high-risk situation.

USCIS may not issue a new i94 once the amendment is approved as you exited the US.

If you want to enter the US to work with old approved H1B and old work location (not new location), then you are fine.

You should be able to enter the US without any issues.

H1B Transfer is Pending Approval

Can I travel while my H1B transfer is pending: Yes, you can.

But, our suggestion is to avoid travel while H1B transfer is pending if you have already joined (started working) for a new employer-based on H1B receipt.

If you are still working with the current H1B employer and waiting for the H1B transfer result, you can travel.

Make sure your H1B stays valid at the time of your return to USA.

H1B transfer status when you re-enter USA:

#1 H1B Transfer is APPROVED

If you had already joined the new employer before leaving the USA, you are lucky. Get the H1B i797 hard copy mailed to you outside the USA and then get an H1B stamp using DS-160 in US Embassy.

If you do not want to get an H1B stamp, you can still enter the USA using your old employer’s H1B stamp is still valid.

Show the approved H1B transfer i797 at the immigration counter at the port of entry to get i94 with the H1B transfer expiry date.

If the immigration officer entertains your request, you are good.

If not, your i94 will be restricted to old H1B’s expiry date.

This will be a problem as you will have to either file another H1B transfer to get a new i94 or travel outside the USA again and get transferred H1B stamped in your passport.

#2 Change of Employer Transfer DENIED

If the H1B application is denied while you are traveling, you can only re-enter the USA if your existing H1B visa is still valid at the time of re-entry.

If you have moved on to a new employer, based on receipt, your old employer would have already withdrawn your H1B approval.

You will NOT be able to enter the USA if its already revoked.

#3 H1B Transfer PENDING

High risk if you have already started working with a new employer on receipt.

The immigration officer may deny your entry as you do not have the approved H1B for your current new employer.

Can I travel while my H-1B Petition is Pending?

The Immigration and Nationality Act of 1952 created the H nonimmigrant classification, which includes several visa classifications for temporary workers and trainees. The H1B visa permits a company to hire a foreign national in specialty occupations. In order to qualify as a “specialty occupation” the job must be complex enough that a bachelor’s degree or higher is the minimum requirement to do the job. The beneficiary (the foreign national worker) must have a Bachelor’s degree or its foreign equivalent in a field related to the specialty occupation and the hiring company (referred to as the “Petitioner”) can employ the beneficiary for up to six years. This visa classification permits the beneficiary to bring over their spouse and children under 21 but the spouse usually cannot work, although there are some limited circumstances where H-4 spouses are able to get work authorization. The H-1B visa is a very popular visa classification because it permits “dual intent,” which allows H1B visa holders to apply for a green card while in the U.S. For more information on the requirements of the H1B visa, please click here.

Under the portability rules of the American Competitiveness in the 21st Century Act (AC21), a foreign worker who is in H1B status may change employers and immediately commence work with the new employer once a new H1B petition has been filed on the worker’s behalf. This permits the flexibility of commencing work with the new employer without having to wait for the H1B case to be approved, and allows for a smooth transition from one employer to another. However, portability does not come without its risks, as the underlying H1B petition could be denied, in which case the employee would need to stop work immediately. H1B applicants can change employers while in the U.S. if they were (i) lawfully admitted into the U.S., (ii) the new employer filed the petition prior to the expiration of their authorized stay, and (iii) The applicant has not been taken part in unauthorized work subsequent to their lawful admission but before filing the petition. It is important to work with competent immigration counsel to determine if portability is a good option for you.

Travelling While an H1B Transfer is Pending

An H1B applicant is permitted to travel during the pendency of the transfer of H1B employers. The H1B applicant may continue to use his or her original H1B visa stamp for entry into the U.S. as long as he or she also has an I-797 receipt notice from the USCIS or other evidence that a new petition was timely filed, in addition to the old H1B visa stamp, when the applicant applies for entry at a U.S. border. After the new petition has been approved, the visa holder must present an approval notice from USCIS evidencing the approval of the change of employer in addition to the visa.

If you plan to travel during the pendency of your H1B transfer, it is absolutely critical that you contact an immigration attorney prior to leaving the country. There are many factors that could have significant consequences on your immigration status while in the United States that may be at play and are easy to overlook. Below are some questions that every H1B visa holder who is changing employers or planning to change employers should ask themselves before leaving the country.

Has my new employer filed the petition yet?

In cases where the H1B applicant no longer works for their previous employer and is currently in his/her 60 grace period (for more information on the new 60-day grace period, click here), the applicant will be ineligible to port to a new employer if they depart the U.S. before a new H1B petition has been properly filed with USCIS . In order to qualify under AC21’s portability rules, the applicant must be physically present in the U.S. when the application is filed. If you return from your voyage abroad and your departure stamp reveals that the petition was filed after the date USCIS received the petition and issued a receipt notice you may be denied entry and your H1B petition will be denied as you were ineligible at the time the petition was filed.

Can I afford to wait for the Receipt Notice before traveling?

Many employers have definite start dates and are in dire need of the H1B applicant’s services. While it is certainly tempting to travel home to see family and friends prior to starting your new position, you should be careful when making travel arrangements and consult with immigration counsel to make sure you are not jeopardizing your immigration status and employment. If you have already stopped employment with your prior employer and are in a grace period, ideally you should wait to get the receipt notice for the new petition before traveling. If you travel before you get a receipt notice and a procedural issue occurs with the filing, such as USCIS losing the file or rejecting application due to something like insufficient filing fees, you would not be able to re-enter the country, as you would not have a receipt notice or proof of filing for the new petition and you would also be ineligible for portability while outside the U.S. Additionally, a receipt notice may get lost in the mail, or be issued late, or may be issued with the wrong receipt date. If you decide to travel without the receipt notice in-hand, you should be aware that an unanticipated delay could result in an extended vacation. If your new employer has set a rigid start date, you should plan for this accordingly.

Do I have a flexible End Date with my old employer, and Start Date with my new employer?

A great way to prevent any issues while traveling during the pendency of a transfer of H1B employers is to, well, not travel with a transfer petition pending. Many H1B applicants often underestimate the flexibility they have at their current position to stay onboard and travel while still employed with the old employer, and pushing back the filing of the H1B transfer until after he/she returns from the trip. You should explore this possibility if you are planning to travel to avoid any unforeseen or incidental consequences to your immigration status.

How To Travel On H1B Visa While H1B Petition Is Pending?

Introduction

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.

SELECT A WORK VISA E-1 Treaty Traders E-2 Treaty Investors E-3 Australian Speciality Workers H-1B Specialty Workers H-1B1 Chileans and Singaporeans H-2A Agricultural Workers H-2B Seasonal Workers H-3 Trainees I Visa L-1 Intra-company Transfers L-1 Blanket O-1 Extraordinary Ability P-1 Athletes or Entertainers P-2 Artists or Entertainers P-3 Artists or Entertainers R-1 Religious Workers TN Visa OR SELECT A FAMILY VISA Adjustment of Status for Citizen Spouse Adjustment of Status for Citizen Parent Immigrant Visa for Citizen Spouse Immigrant Visa for Citizen Parent K-1 Fiance or Fiancee K-3 Spouse of U.S. Citizen Immigrant Visa for Citizen Brother Immigrant Visa for Citizen Sister Green Card for Permanent Resident Spouse Check My Eligibility

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

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.

IMPORTANT

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

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.

Conclusion

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.

We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.

Travel while H1B Pending (Extension, Transfer, Amendment, COS)

Listen to this article

H1B Travel when Application Pending with USCIS: Travelling while your H1B application is pending approval is risky.

We do not recommend traveling unless you have a real emergency to go out of the USA especially when the Amendment is pending.

We recommend upgrading your H1B application to premium and get approval within 15 days before traveling to be on the absolute safe side.

H1B Travel Allowed US Entry Risk Amendment Yes May be denied if started working with H1B Amendment. Extension Yes No entry without Valid H1B stamp. Change of Status Yes No entry without valid H1B or non-H1B Visa. Transfer Yes No entry without Valid H1B stamp.

You can learn quickly by watching this short story about traveling while H1b is pending.

H1B Change of Status is Pending Risks

You can travel outside the US while H1B change of status is pending.

The risk of travel is that USCIS will automatically abandon your Change of status request.

H1B Change of Status application status at the time of re-entry to USA:

#1 H1B COS APPROVED

You will have to get the hard copy of your approved H1B’s i797 and apply for an H1B visa at the US embassy before you can enter the USA with an H1B visa.

This is because your Change of Status was automatically abandoned by USCIS when you stepped out of the USA.

#2 Change of Status DENIED

If the H1B COS is denied while you are traveling, you can enter the USA only with any other visa you have.

#3 COS to H1B PENDING

You cannot enter using H1B status as the application is still pending. You need some other valid visa to enter the USA.

The underlying H1B application will be approved (if approved) with consular processing meaning that you will have to go to the US embassy to get H1B stamped in your passport and then re-enter the USA.

H1B Extension is Pending USCIS Decision

You can travel outside the USA during pending H1B extension. Make sure you have an existing H1B visa that is valid on the date of your re-entry to avoid trouble.

If your current H1B visa has already expired and you travel, you will NOT be able to enter the USA until your pending H1B extension is approved.

Example:

You can travel to India while H1B extension is in progress and visa is still valid for re-entry.

H1B extension status when you re-enter USA:

#1 H1B Extension APPROVED

You will have to get the hard copy of your approved H1B’s i797 and apply for an H1B visa at the US embassy before you can enter the USA with NEWLY approved H1B extended petition.

You can still enter using your OLD valid H1B (if any) but, your i94 will be restricted to old H1B’s expiry date.

This will be a problem as you will have to either file another H1B extension to get a new i94 or travel outside the USA again and get extended H1B stamped in your passport.

#2 Extension is DENIED

If the H1B extension is denied while you are traveling, you can only re-enter the USA if your existing H1B visa is still valid at the time of re-entry.

#3 PENDING Extension

You can still enter using your OLD valid H1B (if any) but, your i94 will be restricted to old H1B’s expiry date once it is approved.

You may not get a new i94 with approval.

H1B Amendment is Pending Result

You can travel internationally while your H1B amendment is still under process at USCIS but we recommend to NOT travel as re-entry risk is very high.

If your amendment status is approved, denied, or pending while you are outside the USA:

#1 APPROVED Amendment

You will need to get the new physical i797 approval shipped to you to re-enter the USA.

#2 H1B Amendment DENIED

You can re-enter the USA using existing H1B approval and stamp but will have to only work using the non-amended H1B.

#3 Amendment is PENDING

You can re-enter the USA using existing H1B approval and stamp but immigration officer will ask tough questions.

You may be denied entry if you have already started working based on the H1B amendment receipt. This is a very high-risk situation.

USCIS may not issue a new i94 once the amendment is approved as you exited the US.

If you want to enter the US to work with old approved H1B and old work location (not new location), then you are fine.

You should be able to enter the US without any issues.

H1B Transfer is Pending Approval

Can I travel while my H1B transfer is pending: Yes, you can.

But, our suggestion is to avoid travel while H1B transfer is pending if you have already joined (started working) for a new employer-based on H1B receipt.

If you are still working with the current H1B employer and waiting for the H1B transfer result, you can travel.

Make sure your H1B stays valid at the time of your return to USA.

H1B transfer status when you re-enter USA:

#1 H1B Transfer is APPROVED

If you had already joined the new employer before leaving the USA, you are lucky. Get the H1B i797 hard copy mailed to you outside the USA and then get an H1B stamp using DS-160 in US Embassy.

If you do not want to get an H1B stamp, you can still enter the USA using your old employer’s H1B stamp is still valid.

Show the approved H1B transfer i797 at the immigration counter at the port of entry to get i94 with the H1B transfer expiry date.

If the immigration officer entertains your request, you are good.

If not, your i94 will be restricted to old H1B’s expiry date.

This will be a problem as you will have to either file another H1B transfer to get a new i94 or travel outside the USA again and get transferred H1B stamped in your passport.

#2 Change of Employer Transfer DENIED

If the H1B application is denied while you are traveling, you can only re-enter the USA if your existing H1B visa is still valid at the time of re-entry.

If you have moved on to a new employer, based on receipt, your old employer would have already withdrawn your H1B approval.

You will NOT be able to enter the USA if its already revoked.

#3 H1B Transfer PENDING

High risk if you have already started working with a new employer on receipt.

The immigration officer may deny your entry as you do not have the approved H1B for your current new employer.

How To Travel On H1B Visa While H1B Petition Is Pending?

Introduction

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.

SELECT A WORK VISA E-1 Treaty Traders E-2 Treaty Investors E-3 Australian Speciality Workers H-1B Specialty Workers H-1B1 Chileans and Singaporeans H-2A Agricultural Workers H-2B Seasonal Workers H-3 Trainees I Visa L-1 Intra-company Transfers L-1 Blanket O-1 Extraordinary Ability P-1 Athletes or Entertainers P-2 Artists or Entertainers P-3 Artists or Entertainers R-1 Religious Workers TN Visa OR SELECT A FAMILY VISA Adjustment of Status for Citizen Spouse Adjustment of Status for Citizen Parent Immigrant Visa for Citizen Spouse Immigrant Visa for Citizen Parent K-1 Fiance or Fiancee K-3 Spouse of U.S. Citizen Immigrant Visa for Citizen Brother Immigrant Visa for Citizen Sister Green Card for Permanent Resident Spouse Check My Eligibility

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

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.

IMPORTANT

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

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.

Conclusion

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.

We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.

Can I Travel While H-1B Application (New, Extension, or Change of Status) Is Pending at USCIS?

What to know before embarking on a trip outside of the U.S., so as to ensure that your travel doesn’t cause adverse problems with your H-1B status.

The international travel guidelines for H-1B visa holders can be confusing. If you’re in the midst of awaiting a decision from U.S. Citizenship and Immigration Services (USCIS) on your H-1B application or extension, leaving the U.S. without preparing in advance can lead to significant issues.

In particular, you might discover that USCIS considers you to have abandoned your pending application, in which case you could be blocked from reentering the country. Here’s what to know before embarking on a trip outside of the U.S., so as to ensure that your travel doesn’t cause adverse problems with your immigration status.

What All H-1B Holders Should Bring When Traveling Internationally

Let’s start with the basics, which apply to anyone currently holding H-1B status and/or a visa. If you are in the U.S. in H-1B status and have a valid visa in your passport, you are permitted to travel outside of the U.S. and return to the United States as long as you reenter prior to your visa’s expiration date.

All H-1B visa holders should carry the following:

valid H-1B visa in unexpired passport

most recent I-797 H-1B approval notice, and

two of your most recent paystubs and/or employment verification letter from your employer.

By presenting these upon reentry, you should have minimal trouble returning to the U.S. in H-1B status.

Note that Canadians in H-1B status are visa exempt, so they may travel and reenter the U.S. in H-1B status as long as they maintain their status validity. They don’t need a visa in their passport. However, H-1B Canadians will want to carry their most recent I-797 approval notice, valid passport, and two recent pay stubs and/or employment verification letter from their employer.

Traveling While Awaiting an H-1B Extension

International travel while your H-1B extension is pending at USCIS is permitted if you have an unexpired visa, but be aware of a few points before taking your trip.

First, you must be present in the U.S. at the time your employer files your extension petition. If you have a pending extension petition, and you travel outside the U.S. and return prior to your status and visa expiration dates, be sure to carry the documents noted above. However, if you use your previous approval notice, upon reentry, your I-94 will be valid only until your current expiration date (until and unless your extension is approved).

If USCIS approves your extension while you are abroad, you will need to reenter the U.S. with your new I-797 approval notice. This might mean that you’ll need to have your approval notice sent to you while you are abroad so that you can present it when you reenter the United States. Also, if your visa expires while you are abroad, you will need to visit a U.S. consulate or embassy to obtain a new one prior to returning to the United States. In either case, be proactive and show the U.S. immigration officer your visa and your I-797 Approval Notice. Do not expect the officer to ask for the I-797 Approval Notice.

If you have a pending H-1B extension, but your I-94 is expired, you are allowed to remain and work in the U.S. while your extension is pending, up to 240 days past your expiration date. However, if you travel outside of the U.S. after your I-94, and thus your H-1B status, is expired, you will not be able to reenter the U.S. in H-1B status until your extension is approved and you obtain your I-797 approval notice. This could cause you to spend more time away from your U.S. job than you originally planned, which could cause issues with your place of employment. This is why traveling internationally with a pending H-1B extension application and expired I-94 is typically not a good idea.

Traveling While Awaiting Approval of H-1B Job Transfer

International travel while you wait for USCIS to approve an H-1B transfer petition from one employer to another is allowed, but you’ll want to plan carefully.

If you are still employed with your “old” employer and have valid H-1B status and a valid visa, you may utilize these for your international trip. However, if you are no longer working for your previous employer, you may not enter the U.S. until a new employer files an H-1B petition for you and you have at least a copy of the I-797 Receipt Notice to show that the new employer’s petition is pending—in this case, when you return to the United States, you can show the immigration officer the H-1B visa in your passport from your prior employer, the I-797 Receipt Notice for the new employer’s H-1B petition, and the offer letter for your new job.

The most conservative route is to secure approval of the new employer’s H-1B petition and then return to the United States either with a new visa or with a valid H-1B visa from a prior employer and the new employer’s I-797 Approval Notice.

Traveling While Awaiting Approval of H-1B Change of Status

So far, this article has discussed instances where the H-1B extension or transfer contained an application for extension of stay (in the United States). However, you might be in a position where your H-1B petition contains an application for change of status instead. This occurs when you change from one nonimmigrant status to another, such as from F-1 student to H-1B or from H-4 to H-1B.

This distinction is important because international travel while a change of status petition is pending operates to abandon the request for a change of status. If you travel outside of the U.S. while your change of status case is in progress, you no longer have a “status” that USCIS could change.

This does not mean, however, that the underlying H-1B petition will be denied. If your H-1B petition is approved, but the change of status is denied, you must obtain an H-1B visa from a U.S. consulate or embassy abroad before reentry. Similar to getting an approved extension while abroad, this could mean that your approval notice will need to be sent to you while you are overseas, as you might need it to get an H-1B visa.

Can I travel while my H-1B Petition is Pending?

The Immigration and Nationality Act of 1952 created the H nonimmigrant classification, which includes several visa classifications for temporary workers and trainees. The H1B visa permits a company to hire a foreign national in specialty occupations. In order to qualify as a “specialty occupation” the job must be complex enough that a bachelor’s degree or higher is the minimum requirement to do the job. The beneficiary (the foreign national worker) must have a Bachelor’s degree or its foreign equivalent in a field related to the specialty occupation and the hiring company (referred to as the “Petitioner”) can employ the beneficiary for up to six years. This visa classification permits the beneficiary to bring over their spouse and children under 21 but the spouse usually cannot work, although there are some limited circumstances where H-4 spouses are able to get work authorization. The H-1B visa is a very popular visa classification because it permits “dual intent,” which allows H1B visa holders to apply for a green card while in the U.S. For more information on the requirements of the H1B visa, please click here.

Under the portability rules of the American Competitiveness in the 21st Century Act (AC21), a foreign worker who is in H1B status may change employers and immediately commence work with the new employer once a new H1B petition has been filed on the worker’s behalf. This permits the flexibility of commencing work with the new employer without having to wait for the H1B case to be approved, and allows for a smooth transition from one employer to another. However, portability does not come without its risks, as the underlying H1B petition could be denied, in which case the employee would need to stop work immediately. H1B applicants can change employers while in the U.S. if they were (i) lawfully admitted into the U.S., (ii) the new employer filed the petition prior to the expiration of their authorized stay, and (iii) The applicant has not been taken part in unauthorized work subsequent to their lawful admission but before filing the petition. It is important to work with competent immigration counsel to determine if portability is a good option for you.

Travelling While an H1B Transfer is Pending

An H1B applicant is permitted to travel during the pendency of the transfer of H1B employers. The H1B applicant may continue to use his or her original H1B visa stamp for entry into the U.S. as long as he or she also has an I-797 receipt notice from the USCIS or other evidence that a new petition was timely filed, in addition to the old H1B visa stamp, when the applicant applies for entry at a U.S. border. After the new petition has been approved, the visa holder must present an approval notice from USCIS evidencing the approval of the change of employer in addition to the visa.

If you plan to travel during the pendency of your H1B transfer, it is absolutely critical that you contact an immigration attorney prior to leaving the country. There are many factors that could have significant consequences on your immigration status while in the United States that may be at play and are easy to overlook. Below are some questions that every H1B visa holder who is changing employers or planning to change employers should ask themselves before leaving the country.

Has my new employer filed the petition yet?

In cases where the H1B applicant no longer works for their previous employer and is currently in his/her 60 grace period (for more information on the new 60-day grace period, click here), the applicant will be ineligible to port to a new employer if they depart the U.S. before a new H1B petition has been properly filed with USCIS . In order to qualify under AC21’s portability rules, the applicant must be physically present in the U.S. when the application is filed. If you return from your voyage abroad and your departure stamp reveals that the petition was filed after the date USCIS received the petition and issued a receipt notice you may be denied entry and your H1B petition will be denied as you were ineligible at the time the petition was filed.

Can I afford to wait for the Receipt Notice before traveling?

Many employers have definite start dates and are in dire need of the H1B applicant’s services. While it is certainly tempting to travel home to see family and friends prior to starting your new position, you should be careful when making travel arrangements and consult with immigration counsel to make sure you are not jeopardizing your immigration status and employment. If you have already stopped employment with your prior employer and are in a grace period, ideally you should wait to get the receipt notice for the new petition before traveling. If you travel before you get a receipt notice and a procedural issue occurs with the filing, such as USCIS losing the file or rejecting application due to something like insufficient filing fees, you would not be able to re-enter the country, as you would not have a receipt notice or proof of filing for the new petition and you would also be ineligible for portability while outside the U.S. Additionally, a receipt notice may get lost in the mail, or be issued late, or may be issued with the wrong receipt date. If you decide to travel without the receipt notice in-hand, you should be aware that an unanticipated delay could result in an extended vacation. If your new employer has set a rigid start date, you should plan for this accordingly.

Do I have a flexible End Date with my old employer, and Start Date with my new employer?

A great way to prevent any issues while traveling during the pendency of a transfer of H1B employers is to, well, not travel with a transfer petition pending. Many H1B applicants often underestimate the flexibility they have at their current position to stay onboard and travel while still employed with the old employer, and pushing back the filing of the H1B transfer until after he/she returns from the trip. You should explore this possibility if you are planning to travel to avoid any unforeseen or incidental consequences to your immigration status.

Traveling in H-1B Status

H-1B Travel Document Checklist

Valid I-797 Approval Notice for Yale University

Copy of all supporting documents issued to you in the OISS approval package (Form I-797 approval notice, I-129, and the Labor Condition application)

Copy of paystubs from Yale for the most recent three months

If you were subject to the J-1/J-2 two-year home-residency requirement prior to obtaining H-1B, bring a copy of your Form I-612 Waiver Approval issued by USCIS.

International travel with H-1B status can be complicated. Below are some basic guidelines with which you should be familiar. However, it is recommended that you check with your adviser before you travel if you have any questions about your situation.

Passports

All international scholars/employees and family members planning to depart from the U.S. and return after a temporary absence must have a valid passport in order to exit the U.S. The passport must also be valid for a minimum of six months into the future at the time of re-entry to the U.S. Some countries have an agreement with the U.S. that automatically extends passport validity for 6 months, for U.S. entry purposes only. Please make sure to review the information in the Passport Expiration section below.

Visas

Except for Canadian citizens, all international scholars/employees and family members will also need to have a valid H-1B/H-4 visa stamp in their passport issued by a U.S. embassy or consulate abroad. Visa stamps cannot be obtained or renewed inside the U.S.

I-94 Record

H status holders are given a specific departure date on the I-94 and must depart the U.S. by this date. It is critical that you know and check this date upon every entry to the U.S. Check also an ink entry stamp with an annotation (the visa type and validity date) given in your passport upon entry. If the visa type and/or validity date do not match your H-1B approval notice, you must speak with your OISS adviser. Please also see the Passport Expiration and I-94 Validity sections below.

General Guidance for Traveling and Re-entering the U.S.

H-1B Travel Considerations

Change to H-1B Status

Scholars/employees are advised to not travel outside the U.S. during a pending change of status H-1B petition (e.g., those who are changing from an F-1/J-1/Other to H-1B), as such an international travel will complicate your work authorization eligibility/immigration status. If you have an unavoidable reason that requires you to leave the U.S., please consult with your OISS adviser before making your travel plans.

Extension of H-1B Status

If you wish to travel outside the U.S. during the H-1B extension process, you should speak to your OISS adviser as soon as possible, before making your travel plans. Your travel plans may affect your H-1B extension processing timing and you are required to have well thought out coordination with your OISS Adviser.

If you plan to return to the U.S. before the expiration of your current approved H-1B status and with a valid H-1B visa stamp, there may not be any difficulty.

However, depending on when the H-1B extension petition is submitted to USCIS, your international travel plans may complicate your H-1B status; therefore it is highly recommended to travel with the extension approval. This may require premium processing.

If you travel after the H-1B extension petition is approved but will return before the current H-1B petition expiration date, it is advisable to travel with both the current and new approval notices. If your H-1B visa stamp is valid on your reentry date, you may use it for admission.

If you plan to leave the U.S. while the extension petition is still pending and your current H-1B status is expired, you cannot return to the U.S. until the extension petition is approved. The approval notice must be sent to you abroad. You would also have to apply for a new H-1B visa stamp with a consulate or embassy before you can return to the U.S.

After you have received the new H-1B extension approval notice, you may travel outside the U.S. once again. However, while outside the U.S., you will have to obtain a new H-1B visa stamp at a U.S. embassy or consulate. It is not possible to obtain visa stamps inside the U.S.

Changing H-1B Employer to Yale

If you wish to travel outside the U.S. during the H-1B extension process, you should speak to your OISS adviser as soon as possible, before making travel plans. Your travel plans may affect your H-1B extension processing timing and you are required to have well thought out coordination with your OISS Adviser.

If you plan to return to the U.S. before the expiration of your current approved H-1B petition with an old employer and with a valid H-1B visa stamp, there may not be any difficulty. However, if your return date to the U.S. is after your start date with Yale, you may have difficulty at a port of entry.

Depending on when the portable petition is submitted to USCIS, your international travel plan may complicate your H-1B status with Yale; therefore it is highly recommended to travel with the portable H-1B approval. This may require premium processing.

If you travel after the portable petition is approved and after your start date at Yale, you must travel with the new approval notice for the Yale appointment. If your H-1B visa stamp is valid on your reentry date, you may use it for admission, even if the visa stamp may have your old employer’s name on it; however, make sure to present your Yale H-1B approval notice upon entry to obtain the correct H-1B status validity on your I-94. Check your I-94 validity and an ink entry stamp given in your passport as soon as possible upon your entry.

If you plan to leave the U.S. while the portable petition is still pending and your current H-1B petition with the old employer is expired, you cannot return to the U.S. until the portable petition is approved. The approval notice must be sent to you abroad. You will also have to apply for a new H-1B visa stamp with a consulate or embassy before you can return to the U.S.

After you have received the portable H-1B approval notice, you may travel outside the U.S. once again. However, while outside the U.S., you will have to obtain a new H-1B visa stamp at a U.S. embassy or consulate. It is not possible to obtain visa stamps inside the U.S.

Passport Expiration

If you or your H-4 dependents are traveling with a passport that will expire before your H approval end date, you will be admitted to the U.S. only for the duration that your passport is valid. This means that your I-94 and legal stay in the U.S. will end earlier than your H-1B approval end date. You will be required to renew your passport and may need to travel outside the U.S. again to be admitted for the full duration of your H approval. If you are in H-1B status and do not travel, Yale will be required to file an H-1B extension on your behalf. H-4 dependents who do not travel will need to file an extension of their H-4 status. It is your responsibility to communicate any status issues to your OISS adviser.

I-94 Validity

Please pay extra attention to your most recent I-94 record and make sure that you will not inadvertently lose H-1B status and work authorization. At the immigration officer’s discretion, some H visa holders may be given a 10-day grace period reflecting on their I-94. The grace period is outside the approved H-1B petition period that allows you to work in the U.S. Do not confuse this with H-1B validity date mismatch and speak with your OISS adviser.

Travel Under The H-1b Portability Provisions

Continued validity of H visas after employer change

If the H-1B worker has changed employers since first entering the United States and has a valid visa annotated for the previous employer, s/he may reenter the U.S. using that visa, provided s/he presents a valid H-1B approval notice for the new employer upon reentry to the United States.

Traveling Outside the US While an H-1B Transfer Petition is Pending with USCIS

A June 19, 2001 legacy INS field memo described how ports-of-entry (POE) should process requests for admission to the United States under the “H-1B portability” provisions of The American Competitiveness in the 21st Century Act of 2000 ( AC21). The memo stated that “[a]n H-1B applicant for admission who is no longer working for the original petitioner is admissible at a POE, pursuant to portability provisions in AC21, as long as certain conditions [listed in the memo] are met.” The applicant must:

Be otherwise admissible. Unless exempt, be in possession of a valid, unexpired passport and H-1B visa. Document that he or she was previously admitted as an H-1B or otherwise accorded H-1B status, with a copy of the previous Form I-94 or I-797 approval notice showing the petition validity dates. Document that a new H-1B petition was filed on his or her behalf, before the expiration of his or her prior period of H-1B stay. This can be done by showing the I-797 receipt notice, in combination with the documentation shown in item 3. If the applicant does not have Form I-797, and a query of CLAIMS shows no evidence that a new petition has been filed, the applicant will not be admitted.

The memo also specifies two additional restrictions:

“If the original H-1B petition has expired, the applicant is not admissible in H-1B status, unless the applicant presents evidence that a new petition has been approved.” The period of admission is limited “to the validity of the previous H-1B petition, plus ten days.”

A February 14, 2001 DOS field cable advised consular officers of the INS memo and H-1B portability policy, and instructed officers to implement that policy in the visa issuance context.

Also see the DOS Foreign Affairs Manual:

9 FAM 402.10-11(A) – Validity of H1-B Visas When Change of Employer Pending

a. Public Law 106-313 provides for “portability” for H1-B aliens, permitting them to change jobs while the petition filed by their new employer is still pending approval by USCIS. In order to change employers without penalty, H1-B aliens must meet the following conditions:

(1) The alien had been lawfully admitted into the United States;

(2) The new employer filed a non-frivolous petition for the alien prior to the expiration of his or her authorized stay; and

(3) The alien had not worked without authorization prior to the filing of that new petition.

b. If the alien’s prior visa and petition have expired prior to the filing of the new petition, the alien is not eligible to receive a new visa until the pending petition has been approved.

Note

There are occasional reports that this legacy INS guidance is not consistently applied at all CBP ports of entry. H-1B travelers can be informed of this, and advised to consult an experienced immigration lawyer if they want advice regarding travel during the portability period.

Is it advisable to travel while an H1B transfer is pending? – Murthy Law Firm

Is it advisable to travel while an H1B transfer is pending?

Answer

Generally, it is not recommended to travel while an H1B change of employer (commonly referred to as a “transfer”) is pending. Technically, if you have a valid unexpired H1B visa “stamp” from Company A, there is a USCIS memo that says that, with the visa stamp, previous approval notice, and the receipt notice for Company B’s H1B transfer, travel generally is permitted. However, given the increased issues at various ports of entry, this can be very risky. In addition, traveling while the company B petition is still pending will result in two different I-94 numbers, which can create additional confusion for future petitions. (22.Oct.2018)

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