Travel Abroad with a Pending Change of Status

As we approach the FY 2015 H-1B cap season, we wish to remind our readers about travel consideration for those transitioning from their current non-immigrant status to H-1B status.  As explained in our previous article, Last Action Rule (Travel Abroad with Approved Change of Status), students with an approved H-1B can travel abroad (without abandoning their H-1B status) as long as they reenter the U.S., prior to the start date of the approved H-1B, in a status they held prior to departing the U.S.

However, this is not the case if one departs the U.S. while his request for change of status is pending with the USCIS.  If a foreign national with a pending change of status application travels abroad, his/her permission to work for the petitioner will be approved but his/her request to change status will be considered abandoned and will be denied by the USCIS.  If the foreign national then returns to the U.S., his/her employer will have to file an amended H-1B petition with the USCIS to change his/her status to H-1B. 

We wish to re-emphasize that in both the above scenarios, the approved or the pending H-1B does not grant travel authorization to the foreign national.  Foreign nationals in valid nonimmigrant status like H-4, L, etc. with valid visas may be able to return in their prior status and those in F-1 status with a valid unexpired F-1 visa, OPT card (not Cap-Gap beneficiaries), Form I-20 (endorsed for travel), and an employment (job offer) letter may use these documents to return to the U.S. 

Each individual’s situation will present a unique set of circumstances & challenges that may require detailed legal analysis by an experienced attorney.  A foreign national with travel plans during their transition to H-1B status must seek legal advice before planning his/her trip abroad.  We at Sharma Law Offices are available to provide additional guidance to those with further questions.