Persons holding H-1B status or awaiting a change of status to H-1B may wish to travel out of the U.S. and return shortly. Below is information that will generally describe some effects of travel. None of the information presented here should be considered legal advice.
Basic Concept: Visa vs. Status
Perhaps the most important concept for you to understand, if you are contemplating travel abroad and re-entry to the U.S., is that holding a valid immigration status and holding a valid visa are not the same thing. The visa is a travel permit in your passport. Valid nonimmigrant status is granted to you by the immigration service. You may have valid status and an expired visa. If the immigration service extended your status or granted you a change of status in the U.S., it did not give you a new visa. You do not need a new visa to remain in the U.S., but you probably need a new one to re-enter the U.S. CHECK YOUR VISA BEFORE YOU TRAVEL. MAKE SURE IT IS VALID (reflecting your current status) AND UNEXPIRED.
Re-entering the U.S. in H-1B Status
If you hold H-1B status and depart the U.S. temporarily during your authorized stay (the validity period of the approved petition), you will need the following to re-enter the U.S. in H-1B status:
- Valid, unexpired Form I-797, the H-1B approval notice provided to your employer (a photocopy may suffice if you cannot obtain the original)
- I-797, valid and unexpired, if you changed status to H-1B in the U.S. (this is your new I-94)
- Valid Passport with expiration at least 6 months in the future
- Letter from your employer confirming that you are still employed at the UI in the position described in the H-1B petition, that you are making a short trip and expected back to work soon
- Valid, unexpired H-1B visa in passport. If your visa has expired or you changed status in the U.S. and never had an H-1B visa, you must apply for a new visa at U.S. embassy or consulate while abroad. There are two exceptions. Canadian citizens do not need a visa to enter the U.S. Also, any person in H-1B status who visits Canada or Mexico for less than 30 days does not need a valid visa, and may re-enter with an expired visa (even from a previous status like F-1, J-1, B-1, etc.).
- Photocopies of the H-1B petition, including the ETA 9035
Travel While Awaiting Approval of H-1B “Change of Status” Petition
If you are awaiting approval of an H-1B petition that would change your current status to H-1B, do not travel. When you leave the U.S., the immigration service will consider your change of status request abandoned. In most cases, if your petition is otherwise approvable, the immigration service will approve the request for H-1B classification and deny the request for the change of status. This means that you will have to leave the U.S. (again), apply for an H-1B visa, and re-enter the U.S. in order to obtain H-1B status.
Should you find it absolutely essential to leave the U.S. while the petition is pending, you may—in most cases—wait outside of the U.S. for the approval, apply for the visa, and then return. You may also consider “converting” your petition to premium processing to speed its approval.
Travel While Awaiting Approval of H-1B “Extension” Petition
If you are awaiting approval of an H-1B extension petition, you may leave the U.S. briefly without abandoning the petition. Travel does not cause abandonment of the extension request.
Please note that if your original authorization, as noted on the Form I-797 approval notice, has expired, you will not be allowed to re-enter the U.S.
As stated above, you must have a valid and unexpired H-1B approval notice and visa to re-enter the U.S. If your original approval has expired, but an extension petition was filed on your behalf before that expiration, you may continue working for up to 240 days, but you will not be able to re-enter the U.S.
Travel While Awaiting Approval of H-1B “Change of Employer” Petition
Recent changes in the law allow “portability” of H-1B status. In short, beneficiaries may begin working for a new employer once that employer has filed the H-1B petition with USCIS. The employer and employee are not required to wait for approval before beginning the employment. If you held H-1B status for one employer and your new employer filed “a change of employer” petition on your behalf, you may travel without abandoning that petition. However, you will only be allowed to re-enter the U.S. if the period on your old approval notice for your previous employer has not yet expired.
You must present the old approval notice, the new receipt notice, a valid and unexpired visa. This is an especially complicated issue, so seek advice before traveling if you are awaiting approval of an H-1B “change of employer” petition.
Travel After Approval of H-1B “Change of Employer” Petition
If an H-1B “change of employer” petition filed on your behalf was approved, you may follow the list above in “Re-entering the U.S. in H-1B Status” and travel and re-enter the U.S. If your H-1B visa is still valid, even though it lists your previous employer, you may use it to re-enter the U.S.
Travel While Awaiting Approval of a Lawful Permanent Residence Petition
In most cases, if you are able to return to the U.S. in H-1B status, you will not be considered to have abandoned a pending lawful permanent residence petition filed on your behalf.
Any trip abroad while you hold H-1B status in the U.S. must be planned carefully. Missteps that might seem small can have dire consequences. There are many considerations.
- Do you need a visa to enter the country you plan to visit? To find out, you may visit that country’s embassy website.
- Do you need a U.S. visa to re-enter the U.S.? If so, you will need to do some research to find out how to apply for the visa, how long it will take to get an appointment and how long it will take the consulate to issue the visa. Visit the Department of State website for general information about visas.
- To obtain information about appointments, processing times, and other “local factors,” access the web site of the U.S. embassy or consulate in the country you plan to visit.