International Travel During H1B Extension

[punapuna86]

Hello there here's my situation.

1. My I94 expired couple of months back along with H1B Visa.
2. My H1B Extension was filed before the expiration.

Its been 2 months and I have not got any approval. However I need to travel next month outside US. In all probabilities I wont be getting approval before that.

Is it wise to travel out of us when extension is still pending? If so do I need to ask out law firm to mail the approval notice to my residence in India for new H1b Visa approval?

[shervin143]

If you travel when the extension is spending, the EOS will be denied and the time that you have spent past the I-94 expiry date will be treated as illegal stay. Either wait for a decision to be taken on your case and then travel or upgrade the case to premium, get the decision and then travel.

[punapuna86]

If you travel when the extension is spending, the EOS will be denied and the time that you have spent past the I-94 expiry date will be treated as illegal stay. Either wait for a decision to be taken on your case and then travel or upgrade the case to premium, get the decision and then travel.

Are you positive my travel out of country will impact my status when H1B is pending?

This question is important as I will have to shell out money for Premium processing. My employer wont do it - so much for their big name!

It will be worse if I am just 15 days away from my decision (My status has been pending for 2 months.) and then I shell out 1000+ bucks for premium!

I heard they are taking half an year for approving H1b Extension (4-5 months), is it true?

[shervin143]

Search for similar posts and you would get the answer.
You may also consult a good immigration attorney.

Are you positive my travel out of country will impact my status when H1B is pending?

This question is important as I will have to shell out money for Premium processing. My employer wont do it - so much for their big name!

It will be worse if I am just 15 days away from my decision (My status has been pending for 2 months.) and then I shell out 1000+ bucks for premium!

I heard they are taking half an year for approving H1b Extension (4-5 months), is it true?

[punapuna86]

Search for similar posts and you would get the answer.
You may also consult a good immigration attorney.

The answers were all very mixed. My company has a very reputable law firm and I am working with them. But they are slow to respond.

[punapuna86]

Just say the above link which says its ok to travel on H1B Extension pending.

[shervin143]

Well, check that link one more time. It clearly says that your current petition should be valid to return and you should have a valid H1B visa. Meaning, when you return and show the old petition, your I-94 will be issued as per the old petition expiry date. Since you left the country, your extension of stay will be denied (Petition might get approved, but without an I-94) and you will need to re-file the extension again. Another option is to leave the country and wait until you get the decision on your H1B. If the H1B extension gets approved, then you can re-enter using the extended petition and an I-94 will be issued at the POE matching your new petition expiry date. If you leave the country and if you re-enter before a decision is made on your case, then it will complicate the case. Search and read about the last action rule. You need to have a valid I-94 to stay in the country.

Just say the above link which says its ok to travel on H1B Extension pending.

[punapuna86]

Well, check that link one more time. It clearly says that your current petition should be valid to return and you should have a valid H1B visa. Meaning, when you return and show the old petition, your I-94 will be issued as per the old petition expiry date. Since you left the country, your extension of stay will be denied (Petition might get approved, but without an I-94) and you will need to re-file the extension again. Another option is to leave the country and wait until you get the decision on your H1B. If the H1B extension gets approved, then you can re-enter using the extended petition and an I-94 will be issued at the POE matching your new petition expiry date. If you leave the country and if you re-enter before a decision is made on your case, then it will complicate the case. Search and read about the last action rule. You need to have a valid I-94 to stay in the country.

Of course no body is going to enter if extension has not yet been approved. But saying that very act of leaving US when H1B extension is pending and I94 has expired causes abandonment of status is tantamount to fear mongering. But you still bring up very good points.

[shervin143]

Well, then you should try and see what happens when you leave the country and experience it for yourself. If your extension is denied (Meaning H1B gets approved for consular process), then your period of stays from your last I-94 expiry date until the date you left the country is illegal stay since you do not have a valid I-94 for that period. To stay legally in the country, you need an I-94. Without that your presence is illegal. You are allowed to stay based on a extension that is already filed. When that extension gets approved with an I-94, your presence become legal. That's all the information I have. Good luck.

Of course no body is going to enter if extension has not yet been approved. But saying that very act of leaving US when H1B extension is pending and I94 has expired causes abandonment of status is tantamount to fear mongering. But you still bring up very good points.

[raghvi]

Well, then you should try and see what happens when you leave the country and experience it for yourself. If your extension is denied (Meaning H1B gets approved for consular process), then your period of stays from your last I-94 expiry date until the date you left the country is illegal stay since you do not have a valid I-94 for that period. To stay legally in the country, you need an I-94. Without that your presence is illegal. You are allowed to stay based on a extension that is already filed. When that extension gets approved with an I-94, your presence become legal. That's all the information I have. Good luck.

In addition, there is a question in the DS-160 which specifically asks if you have at any time overstayed your allowed stay in US, if you leave while your I-94 has expired and extension is still pending, this questions would have to be answered as YES and an appropriate explanation to be provided. Now this may not be a big deal sometimes, but it depends upon officer to officer how they look at it.

This is my opinion not legal advice.

[punapuna86]

In addition, there is a question in the DS-160 which specifically asks if you have at any time overstayed your allowed stay in US, if you leave while your I-94 has expired and extension is still pending, this questions would have to be answered as YES and an appropriate explanation to be provided. Now this may not be a big deal sometimes, but it depends upon officer to officer how they look at it.

This is my opinion not legal advice.

Well if you leave and have applied for premium, I can ask my law firm to mail my new I94 for my international residence can't I? I will not ever appear for visa without newly approved I94.

So there is no question of overstaying visa. In reality my H1B was valid till Dec 16th. The customs officer wrongly stamped my I94 as SEP 2015. That's why we had to go for extension.

[raghvi]

Well if you leave and have applied for premium, I can ask my law firm to mail my new I94 for my international residence can't I? I will not ever appear for visa without newly approved I94.

So there is no question of overstaying visa. In reality my H1B was valid till Dec 16th. The customs officer wrongly stamped my I94 as SEP 2015. That's why we had to go for extension.

Visa, petition, I-94 are three different thing. In your first post you mentioned " My I94 expired couple of months back along with H1B Visa." Did the officer give you I-94 as per visa or as per petition?

If your I-94 was expiring in Sep 2015 USCIS allows to file extension upto 6 Months ahead of I-94 expiry. So you had time from April 2015 to file for extension.

Also, technically the I-94 does not have any meaning once you are outside US and typically USCIS need not give a new I-94 as part of I797 Approval if you have already left. Irrespective, as I said,if you leave before getting the approval, you still have to declare that you overstayed, and then provide explanation that extension was applied prior to your stay expiry and show the approval notice. Most of the times VO are understanding of this fact and you should not have issues.

This is my opinion not legal advice.

[punapuna86]

Visa, petition, I-94 are three different thing. In your first post you mentioned " My I94 expired couple of months back along with H1B Visa." Did the officer give you I-94 as per visa or as per petition?


If your I-94 was expiring in Sep 2015 USCIS allows to file extension upto 6 Months ahead of I-94 expiry. So you had time from April 2015 to file for extension.

Also, technically the I-94 does not have any meaning once you are outside US and typically USCIS need not give a new I-94 as part of I797 Approval if you have already left. Irrespective, as I said,if you leave before getting the approval, you still have to declare that you overstayed, and then provide explanation that extension was applied prior to your stay expiry and show the approval notice. Most of the times VO are understanding of this fact and you should not have issues.

This is my opinion not legal advice.

1. Unfortunately the officer did not give I94 based off of approved petition which was valid till DEC 16. He gave it based off of visa (SEP 15) and hence all this headache. Deferred inspection did not co-operate with me.

2. I cant get into why my extension was not filed earlier [public forum]. I had several different plans and things came down to last minute and here I am.

3. I have two visa stamping F1 and H1B. This would be my second H1B Stamping and third visa. I hope they don't create problems.
My experience suggests that VOs are far more accommodating than CBP. I don't think they can generally afford to get so irrational.

On a side note some of us get desperate about staying in US at all costs. That's like begging for short end of their stick

[raghvi]

1. Unfortunately the officer did not give I94 based off of approved petition which was valid till DEC 16. He gave it based off of visa (SEP 15) and hence all this headache. Deferred inspection did not co-operate with me.

2. I cant get into why my extension was not filed earlier [public forum]. I had several different plans and things came down to last minute and here I am.

3. I have two visa stamping F1 and H1B. This would be my second H1B Stamping and third visa. I hope they don't create problems.
My experience suggests that VOs are far more accommodating than CBP. I don't think they can generally afford to get so irrational.

On a side note some of us get desperate about staying in US at all costs. That's like begging for short end of their stick

Thats been a recent trend with POE officers granting I-94 only til Visa expiry date instead of Petition expiry date. But I do in principle agree to your point that many a times, Visa officers are accommodating and understanding as long as one and ones employer has a clean history.

This is my opinion not legal advice.

[punapuna86]

I guess its right to sum up the scenario like this:

1. Its ok to travel outside US when H1B extension is pending.
2. If it gets approved (which will in all Genuine cases) then apply for VISA outside US with new approved I127.
(Ask your company to mail it to your international residence)
3. Re-enter with new VISA and new I127.

The only problematic scenarios are:
1. When you re-enter US with old H1B petition / Old H1B visa. In that case I94 will be stamped with expiry of old visa (which will likely be in short future).
2. When you apply for visa with old H1B petition, then there will arise question about overstaying I94.
3. If extension its denied then you cant renter US unless there is some juice(time) left in Old H1B petition/visa
(Which wont be denied in any genuine case).

We need to clearly rule out this "Abandonment of Status" scare that is getting propagated once you travel outside US during H1B pending.
Its totally legit to travel when extension is pending. And it wont result in any abandonment of status.

Bottom line - If you are constantly under threat of H1B denial, then you are not working for worthwhile employer.

Comments are welcome