Travel While H1B Extension Is Pending

[aGCHopefull]

Hi Gurus,

I need a quick advice. Request you to please help me with this:

1. My current H1-B visa will expire on Oct 10, 2013
2. I have filed for H1-B extension in May 1st week and it is still pending (regular processing)
3. I have I-140 approved (EB2I - Nov 2010)

For work reasons, my employer wants me to travel to India for 2 months (July to August).

I have following questions:
1. Can I travel to India while H1-B extension is pending?
2. When I travel back in Sep 1st week, could there be an issue at immigration?
3. Will this have any impact on GC process in later years?

Please advice.

Thanks

[vizcard]

Hi Gurus,

I need a quick advice. Request you to please help me with this:

1. My current H1-B visa will expire on Oct 10, 2013
2. I have filed for H1-B extension in May 1st week and it is still pending (regular processing)
3. I have I-140 approved (EB2I - Nov 2010)

For work reasons, my employer wants me to travel to India for 2 months (July to August).

I have following questions:
1. Can I travel to India while H1-B extension is pending?
2. When I travel back in Sep 1st week, could there be an issue at immigration?
3. Will this have any impact on GC process in later years?

Please advice.

Thanks

1 . Yes
2. No. As long as your current h1 is stamped till oct 2013, you will have no issue. Note that you may only get a new I94 valid till oct 10. When you get yiur new 797, that will take precedence but until then your I94 at POE is it. So keep an eye on that.
3. It won't have any impact on GC process.

[Spectator]

Hi Gurus,

I need a quick advice. Request you to please help me with this:

1. My current H1-B visa will expire on Oct 10, 2013
2. I have filed for H1-B extension in May 1st week and it is still pending (regular processing)
3. I have I-140 approved (EB2I - Nov 2010)

For work reasons, my employer wants me to travel to India for 2 months (July to August).

I have following questions:
1. Can I travel to India while H1-B extension is pending?
2. When I travel back in Sep 1st week, could there be an issue at immigration?
3. Will this have any impact on GC process in later years?

Please advice.

Thanks

1. Yes, but the status extension element of the request will be considered abandoned if you travel while it is pending. The petition can be approved, but the I-797 should come without a new I-94.

2. No issue, but if you do not have a copy of the new I-797 by then, you can only get admission until the expiration of your current I-797 (presumably Oct 10, 2013). If you present the new I-797, you can receive admission for the full validity period of the new petition.

3. No impact.

I would encourage your Company to upgrade your H1B extension request to Premium Processing so that it is approved before you leave. In any case, it needs to be approved before you return.

[kd2008]

1. Yes, but the status extension element of the request will be considered abandoned if you travel while it is pending. The petition can be approved, but the I-797 should come without a new I-94.

Spec, having done it myself, I can say the above is not true. The beneficiary needs to be physically present when the receipt for the petition for extension is issued. Once this is done, the status extension can go into effect without hindrance once approved.

For re-entry in the US, there are many different things that need to be aligned.

If you have a valid unexpired visa of the same class when you re-enter then you are good. You will get the I-94 only till the expiry date of the original I-797. The extension once approved will follow after that. This is what happened to me.

Or if you have the original visa and the new extension approval in original in hand then you get an I-94 for the next 3 years from the date of re-entry. I have also done this in the past.

If you do not have a valid visa then, you either need to get one up to the expiry of the original I-797 or wait for the extension approval, collect the original from the employer by mail and apply for a new visa and then re-enter.

Worst, is when your visa has expired and you original I-797 has also expired. Now you want to re-enter the country. Then there is no choice but to wait for extension approval and then apply for a new visa.

[Spectator]

Spec, having done it myself, I can say the above is not true. The beneficiary needs to be physically present when the receipt for the petition for extension is issued. Once this is done, the status extension can go into effect without hindrance once approved.

For re-entry in the US, there are many different things that need to be aligned.

If you have a valid unexpired visa of the same class when you re-enter then you are good. You will get the I-94 only till the expiry date of the original I-797. The extension once approved will follow after that. This is what happened to me.

If you do not have a valid visa then, you either need to get one up to the expiry of the original one or wait for the extension approval, collect the original from the employer by mail and apply for a new visa and then re-enter.

Worst, is when your visa has expired and you original I-797 has also expired. Now you want to re-enter the country. Then there is no choice but to wait for extension approval and then apply for a new visa.

kd,

This is one of those subjects where there are differing opinions.

While, in practice, what you say may be the norm, I respectfully disagree. Even lawyers disagree on this subject, so it certainly is not black and white.

If a request for COS or EOS request is PENDING when the beneficiary leaves the Country, it is abandoned, since the I-94 it is based on ceases to have any value.

Leaving the USA terminates any status, so there is no longer any status to change or extend should the petition be subsequently approved. Absent the request, the I-94 (at least before electronic ones) would be handed in at departure.

If the departure is after the request is Approved, and it becomes effective at a future date (after return), then that is a different story.

Ultimately it is much safer to get a new admission (I-94) for the full extended period of the approved H1B petition by presenting the new I-797 when returning. Given the timescales involved for the OP, there is no reason why this should not be the case.

[kd2008]

kd,

If a request for COS or EOS request is PENDING when the beneficiary leaves the Country, it is abandoned, since the I-94 it is based on ceases to have any value.

Leaving the USA terminates any status, so there is no longer any status to change or extend should the petition be subsequently approved. Absent the request, the I-94 (at least before electronic ones) would be handed in at departure.

Spec, what you say is true only for COS and not for EOS. EOS is based on a previously approved petition and not on the I-94. This was something I couldn't wrap my head around. But that is the case as per my attorney and it so as per USCIS.

Yes, leaving USA ends your status but does not end your petition. If you have a valid visa to re-enter and the a valid approved petition to show then you get a new I-94.

EOS only considers your status on the day of application. Since you do not change class of admission, you march on.

[Kanmani]

Kd,

Did you receive your approval notice along with the detachable I-94 at the bottom of I797?

[qesehmk]

KD / SPEC

EOS is based on prior I-94 when CBP issued authorization of stay shorter than the underlying approval from USCIS.

However in majority cases CBP gives authorization through the end of underlying approval from USCIS in which case EOS for USCIS means extension of existing approval.

USCIS itself IMHO looks at it as extension of STAY rather than extension of status. Please note the difference. But USCIS doesn't make assumptions on where the applicant is located at the time of approval of EOS.

If the applicant is abroad then s/he must have appropriate visa to reacquire a status.

In this particular case when aGChopefull comes back s/he will get only remainder of prior H1B as authorized stay (if there is remainder). If the remainder is ZERO then s/he must have a new H1B stamped in his/her passport.

I have in the past came back to US with 3 days left on my prior H1B with I-129 approved for another 3 year extension. The CBP gave me only 3 days. The lawyer had to file for another EOS after that if I remember correctly.

[kd2008]

Kd,

Did you receive your approval notice along with the detachable I-94 at the bottom of I797?

Yes, Kanmani I did.