H1Bs and Travel Issues as Discussed at NJ Seminar in Dec. 2001
Posted Dec 28, 2001

On December 5, 2001, Attorney Murthy traveled to New Jersey to speak on H1B related issues at a seminar, which was jointly sponsored by the NJ Institute of Continuing Legal Education and American Immigration Lawyers Association, New Jersey Chapter. The seminar participants were immigration lawyers, H.R. Managers, and in-house counsel at companies hiring foreign nationals. Some of the highlights discussed by Attorney Murthy during the seminar were issues dealing with travel while on H1B status.

Last Action Rule

In March 2000, the INS instituted a policy referred to generally as the "Last Action Rule." Although this is not the official term, it symbolizes the position of the INS that the last action taken on a case is the governing status of the person when s/he travels outside the U.S. For example, if a person files an H1B extension of status with a new employer and then travels outside the U.S., re-entering the U.S. from foreign travel, and the INS approves the H1B extension, the individual's latest I-94 card would govern the validity date. This was certainly helpful for many cases but continued to pose problems in those cases for which the INS had approved the H1B extension a day or two before the person re-entered the U.S. with the latest I-94 card containing an earlier date that did not provide any comfort to the H1B traveler.

In a Memo dated June 18, 2001, Thomas Cook, Acting Assistant Commissioner, Office of Programs of the INS confirmed that the last action rule only applies in cases of extensions of status and not for changes of status. So if a person on an H1B travels outside the U.S. when a change of status application is pending, s/he is deemed to have abandoned the change of status application.

INS Instructs Inspectors on Travel and H1B Portability

On January 29, 2001, INS issued a memo regarding H1Bs and travel. The memo explains only what to do when traveling while the new employer's H1B petition is pending. It does not state INS' opinion as to who can qualify for portability. Further information on portability criteria should be forthcoming in regulations, which do not appear on the horizon even a year after the passage of the American Competitiveness in the Twenty-First Century Act (AC21) of October 2000. There is still no news on when those regulations will be issued.

Requirements for Admission to U.S.

A person who has changed jobs under the portability provision of AC21 will be admitted based upon the latest H1B approval, provided s/he:

a) is "otherwise admissible," meaning s/he is not subject to grounds of inadmissibility such as fraud, certain criminal convictions, etc.;

b) has a passport and un-expired H1B visa (except for visa-exempt persons, such as Canadians);

c) can prove prior admission as an H1B or that s/he previously held H-1 status by showing a document such as prior I-94 card or approval notice;

d) can prove that a timely petition was filed by the new employer, by showing a receipt or other evidence of filing. If other evidence is used, then the Inspector needs to check the INS database to verify that the petition was filed.