Last Action Rule (Travel Abroad with Approved Change of Status)
This time of the year, when many F-1 students are changing status from F-1 to H-1B, we want to remind them about issues they may potentially face if they wish to travel abroad before their H-1B start date.
Though not a formal rule or a case law, guidance in the form of a letter was issued by the United States Citizenship & Immigration Services (USCIS) in August 2004 to clarify validity of a new status with a future start date when a foreign national travels outside the United States and re-enter on a prior status.
Known as “Last Action Rule”, USCIS reasoning in such cases is the action taken later (last action) in time governs a foreign national’s immigration status. Efren Hernandez, Chief of USCIS Business and Trade Services Branch, in his letter reasoned that the last action under the immigration rules is not the reentry of the person in the U.S., but is taking effect of the previously approved status with a future start date.
The question posed to the USCIS assumed that a person is filing for a change of status from F-1 to H-1B status few months before the requested start date. So, on July 2004 an H-1B petition to change a person status from F-1 to H-1B is filed using Premium Processing service. The petition and change of status are both approved in August 2004 but with effective start date of December 1, 2004. USCIS issues an I-797 approval notice to the beneficiary with an I-94 card reflecting the new H-1B status.
The beneficiary of the petition then travels abroad on September 1, 2004 and returns to the US on September 15, 2004 in F-1 status. The question posed to the USCIS was: whether beneficiary’s previously approved change of status from F-1 to H-1B will automatically take effect on December 1, 2004 or will he continue to be in F-1 status based on his most recent entry in the US.
The USCIS in its response stated, a change of status in the given scenario takes effect automatically on the effective date of December 1, 2004 (appearing on the Form I-797, Notice of Action) even if there is an intervening admission in F-1 status. Even though the beneficiary would receive a new I-94 card at the Port of Entry based on his most recent travel, the tear-off Form I-94 at the bottom of the H-1B approval notice (Form I-797) would act as proof of the change of status on December 1st.
The Hernandez letter has been helpful in clarifying a complicated issue faced by foreign nationals contemplating foreign travel. The questions posed assumed the foreign national was changing status from F-1 to H-1B but same logic would apply in other cases or situations when applicant submits more than one application within a short period of time. Each individual’s situation will present a unique set of circumstances & challenges that may require detailed legal analysis by an experienced attorney.
We at Sharma Law Offices are available to provide additional guidance to those with questions about the impact of last action rule on their cases.