May 21, 2017
Immigration Law Alert | International Travel Series
Immigration Law Alert | International Travel Series
Author(s): Jason Gerrol
As happens every year, foreign national workers selected in the H-1B visa lottery will be making plans to apply for an H-1B visa at a U.S. Consulate abroad. For those new to the process, here are some helpful travel guidelines.
Congratulations! Yours was one of the 85,000 H-1B petitions selected in this year’s lottery conducted by U.S. Citizenship and Immigration Services (USCIS).
As USCIS now undertakes several months to adjudicate and approve those H-1B petitions, there are travel issues that foreign nationals should be aware of as they plan summer travel and the activation of their H-1Bs.
If currently in the U.S. in F-1 student status, please note that there are additional travel issues particular to F-1 students. F-1 students will find the below information helpful, but should be sure to consult with their school’s international student advisor prior to planning international travel.
An H-1B petition filed as a “change of status” does not require the beneficiary of that petition to depart the U.S. Rather, once the H-1B petition is approved, the foreign national’s status will automatically change from their current lawful immigration status to H-1B status if the foreign national is physically located in the U.S. on October 1, 2017 (the effective date of the H-1B petition).
Accordingly, if your H-1B petition was approved as a change of status, there is no need to plan a special trip outside the U.S. in order to obtain an H-1B visa stamp (issues particular to visa-exempt Canadian nationals will be discussed below). Your visa stamp is simply your “admission ticket” to the U.S. after international travel. There is no requirement that you have an H-1B visa stamp in your passport if already in the U.S. You will, however, need to obtain an H-1B visa stamp at a U.S. Consulate abroad the first time you travel outside the U.S. after October 1, 2017.
Please note that international travel prior to the approval of your H-1B petition will constitute an abandonment of your change of status request. Your H-1B petition will not be denied, but your petition will automatically revert to consular notification. If you are in F-1 status, this may have serious consequences (e.g., termination of “cap gap” employment authorization). If you are in another non-immigrant status, such as TN, this means that you must activate your H-1B in accordance with the consular notification procedures discussed below.
As a general rule, with the exception of F-1 students, you may travel internationally this summer and return to the U.S. using your current valid, unexpired non-immigrant visa stamp. However, please note that as October 1, 2017, and your change of status to H-1B approaches, there will be an increasing risk of a Customs and Border Protection (CBP) Officer refusing to admit you on your current non-immigrant visa, and demanding that you enter using an H-1B visa stamp.
Unlike the above change of status scenario, if the H-1B petition was filed requesting consular notification, your status will not automatically change to H-1B status effective October 1, 2017. Rather, you will need to take the affirmative step of departing the U.S., applying for an H-1B visa stamp at a U.S. Consulate abroad, and returning to the U.S. using that visa stamp on or after October 1, 2017, in order to “activate” your H-1B status.
The timing for when you must depart the U.S. and activate the H-1B will vary. For example, if you are currently working for your employer in valid L-1 status, you may continue to work for that employer until your L-1 status expires, and you may continue to travel using a valid, unexpired L-1 visa stamp.
You should make special note of your current non-immigrant status expiration date, and be sure to activate your H-1B in advance of that expiration date to ensure a seamless transition from your current non-immigrant status to H-1B status with no interruptions in your employment authorization. Conversely, if you are currently in the U.S. working for another employer in L-1 status, for example, you will need to make plans to activate your H-1B in time for your anticipated start date with your new employer.
It is generally recommended that you make plans to apply for the H-1B visa stamp at a U.S. Consulate in your home-country. Not only is this required in some cases, but does also result in more efficient case processing in the event the U.S. Consulate needs to conduct any further background checks or additional administrative processing. U.S. Consulates will be implementing increased vetting procedures for some applicants, and this should be taken note of when planning both the timing and place of your H-1B visa interview.
In most cases, the U.S. Consulate will not allow you to apply for your H-1B visa stamp any sooner than 90 days prior to the effective date of your H-1B. All H-1B petitions selected and approved in this year’s USCIS lottery will have an October 1, 2017, effective date, and your H-1B visa stamp will also have an October 1, 2017, effective date. While the immigration regulations will allow you to enter the U.S. using your H-1B visa stamp up to 10 days prior to October 1, 2017 (i.e., September 21, 2017), you will not have employment authorization during that 10-day period in the U.S.
The U.S. Consulates in Canada currently accept non-immigrant visa applications from third-country nationals (i.e., non-Canadian citizens) but only when those third-country nationals can establish that they have been previously living in the U.S. in a lawful immigration status for school or work (some third-country nationals will also need to apply for a Canadian visitor visa).
While applying for your visa stamp in Canada may be more convenient than traveling to your home country, if your application is selected for additional administrative processing, the U.S. Consulate may retain your passport, delaying your return to the US and preventing you from leaving Canada until the visa process is concluded. If your application is rejected for whatever reason, you must return to your home-country to apply for the visa. As a result, it is generally best to plan on having the visa interview in your home-country.
Under a rule known as automatic visa revalidation, it may be possible to travel after the effective date of your H-1B (October 1, 2017) and return to the U.S. in H-1B status without obtaining an H-1B visa stamp. Automatic visa revalidation only applies to brief trips of 30 days or less to Canada, Mexico or select other “contiguous territories.” A foreign national wishing to travel to Canada or Mexico under automatic visa revalidation must have been previously admitted to the U.S. on a non-immigrant visa, have no interruptions in maintenance of their non-immigrant status and must make no attempt to apply for a visa stamp while in Canada or Mexico.
There have been reports of CBP officers refusing to allow the return admission of international travelers under automatic visa revalidation. Accordingly, foreign nationals should use caution if wishing to travel under this provision, and should consult with an immigration professional prior to traveling.
All of the change of status and consular notification rules mentioned above still apply to Canadian citizens, with one important difference. Canadian citizens are considered visa-exempt and do not need an H-1B visa stamp in their passports. Regardless of whether your petition was approved as a change of status or for consular notification, you may travel internationally and re-enter in H-1B status after October 1, 2017, simply by showing your H-1B/I-797 approval notice.
Although you do not need an H-1B visa stamp in your passport, please be sure to review the above issues relating to the timing of your travel and the appropriate time to activate your H-1B.
Unless your spouse maintains his or her own independent non-immigrant status (e.g., he/she has his/her own H-1B), your spouse and dependent children will need to assume H-4 visa status at the same time as you obtain H-1B visa status.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.