Sat. Sep 24th, 2022

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Travel After Change-of-Status Approval with Future Start Date

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DHS Final Public Charge Rule

In 2004, the U.S. Citizenship and Immigration Services (USCIS) confirmed the continued validity of an approved change-of-status petition with a future beginning date when an individual travels abroad after such approval but reenters the United States before the future beginning date is reached. This explanation has been valuable, particularly for cap-subject H1B petitions, which typically request a future start date.

How Does the Last-Action Rule Apply During International Travel? | Change-of-Status Approval

The fundamental inquiry presented to the USCIS in 2004 was, “What occurs if the USCIS has approved one’s status and petition with a future beginning date and, thereafter, the individual travels outside of the United States, reentering in the present (unchanged) status before the future beginning date?” That’s what we know, for one who has gotten, for instance, an H1B petition approval with a change of status, and who stays in the U.S. until the H1B start date, that individual’s status would change as of the date listed on the H1B approval notice. So, the question is whether the intervening international travel changes the equation. Under the “last-action rule” where the last action of the USCIS governs one’s status.

Example: Filing a COS from F-1 to H1B with a Future Start Date

The question presented to the USCIS expects that one is in F-1 status and an employer is filing for a change of status to H1B. With a beginning date six months after the time of filing. So, moving the example to right now, on 1st May 2022, the employer filed an H1B petition with a 1st October 2022 beginning date. The case is approved on 23rd August 2022, with a change of status from F-1 to H1B. The I-94 reflecting the change of status is attached to the approval notice. The individual’s F-1 and optional practical training (OPT) are valid. So the beneficiary decides to travel outside the United States on 25th August 2022. Getting back to the U.S. on the F-1 on 6th September 2022, almost a month prior to the H1B start date of 1st October 2022.

So, the inquiry presented is whether, after the international travel, the previously-approved change of status from F-1 to H1B. With an effective date of 1st October 2022, is still valid. Or is the last action considered to be the F-1 admission reflected on the I-94 created at the U.S. port of entry on 6th September 2022.

USCIS Reasoning of “Later in Time” Governs

The USCIS expressed that the change of status would produce results consequently. On the effective date of the H1B petition/change-of-status approval notice of the action of 1st October 2022, in this example. The intervening admission to the U.S. does not override this later effective date. The “last action” rule doesn’t change this reality because the last action that has been taken is the effective date of the H1B petition and change of status approval. Although the I-94 card reflecting the H1B change predates the latest I-94 update entered electronically. At the port of entry, the change of status to H1B doesn’t become effective until 1st October 2022. After the individual’s entry into the United States.

USCIS Letter Guidance Applied

This analysis was given by the USCIS as a letter of direction. Such guidance doesn’t carry the binding force of law or regulation. However, the USCIS has commonly applied the analysis contained in the letter starting around 2004.

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Distinguish from Travel While Change of Status Pending

This guidance should not be confused with the rule that an individual travels abroad. While a change of status is pending abandons the request for the change of status. In the inquiry represented, the petition and the change of status had been approved. Before the individual withdrew from the U.S. While the example utilized was a change from F-1 to H1B, there are different situations in which a similar logic applies.

Conclusion

The 2004 Hernandez letter stays helpful and relevant even after many years. While it would be preferable to give this guidance in a more formal matter (e.g., adding this to the USCIS Policy Manual). At least the letter provides a measure of confidence for foreign nationals. Who has to travel before the start date of an approved H1B petition goes into effect?

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