The international travel guidelines for H-1B holders can be confusing. If you're in the midst of awaiting a decision from U.S. Citizenship and Immigration Services (USCIS) on your H-1B application or extension, leaving the U.S. without preparing in advance can lead to significant issues.
In particular, you might discover that USCIS considers you to have abandoned your pending application, in which case you could be blocked from reentering the country.
Here's what to know before embarking on a trip outside of the U.S., so as to ensure that your travel doesn't cause adverse problems with your status.
Let's start with the basics, which apply to anyone currently holding H-1B status and/or a visa. If you are in the U.S. in H-1B status and have a valid visa stamp in your passport, you are permitted to travel outside of the U.S. and return to the U.S. as long as you reenter prior to your visa's expiration date.
Under the current political climate, reentry into the U.S. for non-citizens has been regarded with heightened scrutiny, however, so you will want to be cautious and travel with certain documentation to ease the reentry process. All H-1B visa holders should carry the following:
By presenting these upon reentry, you should have minimal trouble returning to the U.S. in H-1B status.
Note that Canadians in H-1B status are visa exempt, so they may travel and reenter the U.S. in H-1B status as long as they maintain their status validity. They don't literally need a stamp in their passport. However, H-1B Canadians will want to carry their most recent I-797 approval notice, valid passport, and two recent pay stubs and/or employment verification letter from their employer.
International travel while your H-1B extension is pending at USCIS is permitted if you have an unexpired visa stamp, but be aware of a few points before taking your trip.
First, you must be present in the U.S. at the time your employer files your extension petition If you have a pending extension petition, and you travel outside the U.S. and return prior to your status and visa expiration dates, be sure to carry the documents noted above. However, if you use your previous approval notice, upon reentry, your I-94 will be valid only until your current expiration date (until and unless your extension is approved).
If USCIS approves your extension while you are abroad, you will need to reenter the U.S. with your new I-797 approval notice. This might mean that you'll need to have your approval notice sent to you while you are abroad so that you can present it when you reenter the United States. Also, if your visa stamp expires while you are abroad, you will need to visit a U.S. consulate or embassy to obtain a new one prior to returning to the United States.
If you have a pending H-1B extension, but your I-94 is expired, you are allowed to remain and work in the U.S. while your extension is pending, up to 180 days past your expiration date. However, if you travel outside of the U.S. after your I-94, and thus your H-1B status, is expired, you will not be able to reenter the U.S. in H-1B status until your extension is approved and you obtain your I-797 approval notice. This could cause you to spend more time away from your U.S. job than you originally planned, which could cause issues with your place of employment. This is why traveling internationally with a pending H-1B extension application and expired I-94 is typically not a good idea.
International travel while you wait for USCIS to green light an H-1B transfer petition from an old employer to a new employer is normally allowed, but due to increased scrutiny, it can be somewhat risky.
If you are still employed with your "old" employer and have valid H-1B status and a valid visa, you may utilize these for your international trip. However, if you are no longer working for your previous employer, you may not leave the U.S. until a new employer files an H-1B transfer petition for you, as you must be physically present in the U.S. at the time of the petition filing.
The most conservative route is to hold off on leaving the U.S. until you receive the receipt notice for the transfer petition. You should also be sure to carry the receipt notice along with the documents noted above to assist with any questioning you might face upon reentry as well as paystubs from your previous employer to indicate continuous maintenance of status.
So far, this article has discussed instances where the H-1B extension or transfer contained an application for extension of stay. However, you might be in a position where your H-1B petition contains an application for change of status instead. This occurs when you change from one nonimmigrant status to another such as from F-1 student to H-1B or from H-4 to H-1B.
This distinction is important because international travel while a change of status petition is pending is not permitted at all. If you travel outside of the U.S. while your change of status case is in progress, USCIS will take the position that you abandoned it.
This does not mean, however, that the underlying H-1B petition will be denied. If your H-1B application is approved, but the change of status is denied, you must obtain an H-1B visa stamp from a U.S. consulate or embassy abroad before reentry. Similar to getting an approved extension while abroad, this could mean that your approval notice will need to be sent to you while you are overseas, as you will need it to get an H-1B visa stamp.