Traveled out of the country with H1 extension in progress

[rvisak]

Hi All

First of all greetings on the New Year

I am posting this question on behalf of a friend. He has a H1 valid till Feb 2012 (never stamped, was in US itself when filing H1) and filed an extension a few mths back. The extension is still under process and his company has refused to upgrade it to premium, even if he pays for it !

He has traveled to his home country...if the extension does not come through by the time he is planning to return (end of Jan 2012) what are the options?

1) At the POE I am assuming his I-94 will be valid only till Feb 2012, correct?

2) Lets assume his extension petition is still under review once his I-94 expires - is he legally allowed to continue ? I know you can if you have filed a H1 and have stayed in the country, waiting for the decision - not sure if his leaving & re-entry causes issues.

3) Any other complications that can arise -esp regarding issue around I-94's coming in with a approved extension etc ?

Thanks in advance !

[shervin143]

First of all it is never advisable to travel when the extension is pending with USCIS. Technically when the person leaves the country, the extension should get denied and the H1B might very well be approved for a consular process (without a new I-94). If the H1B gets approved with a new I-94 when the person is outside U.S, then that I-94 should be returned back to CBP with proper explanation that the person is no longer in U.S (by attaching proof of passport exit records and copy of flight tickets).

The best option is to return back after the extension gets approved. That way, by showing the latest approval notice at the POE, an I-94 with the same expiry date can be obtained. The last received I-94 will take precedence.

[rvisak]

Thanks Shervin for your response. He has already traveled out of US , and not sure if he can wait till extension approval considering his employer, client might give him flak...will relay though that coming back minus the approval can result in complications

[shervin143]

It can result in complications. If his EOS gets approved when he is back in U.S, then he need to apply the last action rule to figure out when his status will actually expire. If the EOS gets denied, then another extension need to be filed immediately. If the H1B gets approved without an I94, then he need to either file the extension again (the documents should reach USCIS before his I-94 received at the POE expires) or leave the country and return back with a valid H1B visa and the extended petition and get a new I-94 at the POE.

Thanks Shervin for your response. He has already traveled out of US , and not sure if he can wait till extension approval considering his employer, client might give him flak...will relay though that coming back minus the approval can result in complications

[rvisak]

thanks for explaining in detail Shervin will relay this info...thanx again !