Travelling While H-1B Change-of-Status is pending

Update as per USCIS “Letter of Guidance”

In a “Letter of Guidance” issued recently, the U.S. Citizenship and Immigration Services (USCIS) has clarified that if a person travels abroad while his change of status to H1 request is still pending, he or she will by default abandon the request for the change of status.

This is presumably come into effect for change of status requests to H1 with a start date from Oct 1st 2007. Also, the letter is not legally binding and as such we advice the beneficiary to avoid traveling abroad in such a situation.

Example:

  1. A is on H4 status as on April 1st 2007.
  2. Company X applies for a H1 petition for A with a start date of Oct 1st 2007.
  3. While the petition for change of status to H1 is pending, A travels to India.
  4. USCIS considers that A has voluntarily abandoned the change of request by traveling abroad.

So, we suggest that beneficiaries under the H1B processing make sure of their status before planning for travel abroad.

Travel after Approval of Change of Status

If the beneficiary’s change-of-status has been approved, then the Last Action Rule does not apply.

Therefore, if A travels out of the country and re-enters the US after the H1B petition is approved, but before the start date of Oct 1st on H1, A’s status will be unaffected and considered to be changed from H4 to H1 as on Oct 1st 2007.

NOTE: The travel has to happen after the H1B petition is approved and before the start date of Oct 1st 2007, but not while the petition is pending to take benefit of this letter guidance.