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Can I
travel while my H-1B petition is still pending after I graduate from
college?
If you are applying to change from
F-1 international student status to H-1B status after graduation,
traveling outside the US may cause the following serious
complications to your immigration status:
1. Though your H-1B petition may
still be approved, your request to change your status in the US may
be denied. In this case, you will likely have to apply for an H-1B visa at
a US embassy abroad before you can enter the US on H-1B status.
2. In some
cases, F-1 students approved for H-1B status may have their SEVIS
registrations automatically erased in error by the system. In
this case, the student may have trouble reentering the US on her F-1
visa. Due to the change in the SEVIS system, the student's F-1 status cannot be verified at the
border, despite the student having a valid I-20 Form. A student might take
a letter from her school indicating that paperwork has been filed to
fix the error. However, there is no guarantee that the
student will be issued a new F-1 visa or readmitted in this scenario.
3. A student, with an approved H-1B
petition, who needs to maintain her F-1 status, may also face difficulty
at the point of entry into the US. The immigration officer inspecting the
returning student at the point of entry might
question the student's bona fide intent to enter the US
temporarily. This is because foreign nationals in H-1B status
can have "dual intent," meaning they may pursue immigrant visas with
no effect on their H-1B status; F-1 students cannot have such dual
intent.
Therefore, even though it is permissible for an F-1
student with approved H-1B petition to travel, it is best to refrain
from doing so until the change of status becomes effective or, if
travel is necessary, it should be done cautiously due to the SEVIS
and "intent" issues described above.
My H-1B
petition was approved; what should I do now?
Remove the I-94 card from the lower right
portion of your I-797 Approval notice. Staple this I-94 card to the
old I-94 that is already in your passport. Be sure to retain the
approval notice in a safe place; if you lose this notice if may take
a while to obtain a new notice, and may also require additional
fees.
What should
I do when I travel, after I receive my H-1B status?
First Time Travel - When you travel
outside of the US for the first time after you receive your H-1B
status, you and your H-4 dependents will need to apply for H visas.
(That is, unless you are a Canadian citizen.) You may apply
for your H visa in your home country, or possibly in Canada.
Before you travel, be sure to schedule a visa
interview at the Consulate where you are applying for your visa.
You should be able to do this electronically. After you schedule
your interview, you will given further instructions as to what forms
to fill out, the associated fees, whether ID photographs are needed,
and other documentation needed (e.g. proof that an H-1B petition was
filed on your behalf, and proof that you continue to be employed by
your employer). (Please note that you will need to bring
additional documents if your dependent is also applying for H-4
status.) Processing times for your H visa may vary depending
on the consulate you go before.
After Visa Issued - When traveling out
of the US while your H-1B status is valid, in addition to your
passport with your H visa stamp, you should bring your original H-1B
approval notice, and have available to present proof of your
continued employment with your H-1B employer.
Why is my I-94 Card
important?
Your I-94 card indicates the period of time
that you are allowed to be in the US. Be sure to look
carefully at your I-94 card after the inspector has completed your
inspection process to ensure that the inspector date stamped your
I-94 card, has written H-1b on the card, and has written the correct
end date for your H-1B status. If the inspector has not done
this, respectfully request to know why and request permission to see
someone in secondary inspections to see if the date can be corrected
before you leave the inspections area. Please note:
If your passport will expire in less than one year from the time you
enter, you will likely be inspected into the country for a period of
time less than that granted on your Approval Notice. The
officer inspecting you will not be able to correct this. If
this is the case, please contact our office as soon as possible to
see what action you will need to take in order to extend your H-1B
status.
What if I no
longer work for my H-1B employer?
Your employer must provide you with the
reasonable cost of return transportation to your last country of
residence. The law does not require an H-1B employer to
pay the reasonable cost of the airline ticket for returning
family members or for the transfer of an H-1B worker's property to
her home country. Also, there is no obligation for an employer to
provide an H-1B worker with return transportation costs if the H1B
employee chooses to remain in the US. If an employee believes
that her employer is not complying with the above requirement, a
complaint may be filed with USCIS. The employer must also
notify USCIS of any material changes in the terms and conditions of
an H-1B worker's employment. The employer should send a letter
to USCIS, notifying of the agency of the termination.
What if I am benched?
The Department of Labor prohibits benching
H-1B employees without full pay. An H-1B employee who is
temporarily non-productive due to employer’s request or lack of
work, must continue to be paid her regular wages. This
requirement ends upon bona fide termination of the employee's
position.
If I lose my
job, am I allowed a “grace period”?
When the employment of an H-1B employee ends,
her lawful nonimmigrant status terminates on the same day.
There is no grace period. Remaining in the US after the
termination of H-1B employment is a failure to maintain lawful
immigration status. The failure to maintain lawful immigration
status may affect the employee’s ability to (1) remain in the US,
(2) be approved for other lawful nonimmigrant status, and (3) be
approved for permanent residence.
Under the law, an H-1B employee who remains in
the US after termination of nonimmigrant status is not eligible to
change, or extend, her nonimmigrant status. However, USCIS
might still permit
nonimmigrant status for a terminated employee if the employee is
able to get another H-1B petition filed by a new employer within 30
days (possibly 60 days) of the termination.
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