Travel after Change-of-Status Approval with Future Start Date
Posted May 06, 2005
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The USCIS has clarified the issue regarding the continued validity of a previously filed and approved change-of-status petition with a future start date, when a person travels abroad after such approval but seeks to enter on a prior status.
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This clarification is useful as many employers have, since April 1, 2005, filed H1B petitions reflecting future start dates under the FY2006 H1B quota; effective from October 1, 2005 in many instances. Although most lawyers advise their clients against international travel after filing petitions with changes of status, recent clarification from the USCIS may help individuals to travel more freely than before, without jeopardizing the previously-approved petition and change of status effective with a future start date.
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How Does the Last-Action Rule Apply During International Travel?
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The basic question posed was, "What happens if the USCIS has approved a person's status and petition with a future start date and, thereafter, the person travels outside of the United States, reentering in the present (unchanged) status prior to the future start date?" We know that, for a person who has obtained, for example, an H1B petition approval with a change of status and who remains in the U.S. until the H1B start date, that person'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.
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The USCIS responded that the travel does not change the equation. The USCIS, through Efren Hernandez, Chief, Business and Trade Services Branch, reasoned that the last action would not be the travel and reentry in the prior status, but the previously-approved petition and change of status with a future start date. The travel does not invalidate the previously-approved USCIS change of status effective from a future date. This is because the last action regarding the person's status governs.
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Example - Filing a COS from F-1 to H1B with Future Start Date
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The question posed to the USCIS assumes that a person is in F-1 status and an employer is filing for a change of status to H1B with a start date six months after the time of filing. So, on April 1, 2005, the employer files for an H1B with an October 1, 2005 start date. Premium processing is used, so the case is approved on May 1, 2005, 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 person's F-1 (presumably Optional Practical Training) is valid, so s/he decides to travel outside the U.S. after May 1, 2005, returning to the U.S. on the F-1 on September 1, 2005, one month prior to the H1B start date of October 1, 2005.
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So, the question posed is whether, after the international travel, the previously-approved change of status from F-1 to H1B, with an effective date from October 1, 2005, is still valid, or is the last action of the USCIS considered to be the F-1 stamp made on I-94 card at the U.S. port of entry on September 1, 2005.
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USCIS Reasoning of "Later in Time" Governs
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The USCIS stated that the change of status would automatically take effect on the effective date of the H1B petition / change-of-status Notice of Action of October 1, 2005, in this example. The intervening admission to the U.S. does not override this later effective date. The "last action" rule does not change this fact 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 card given at the Port of Entry, the change of status to H1B does not become effective until October 1, 2005, after the person's entry into the United States.
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USCIS Letter Guidance Helpful but Not Legally Binding
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This analysis was provided by the USCIS in the form of letter guidance. Such guidance does not carry the binding force of law or regulation and generally is given less weight than even a USCIS policy memo. In the absence of any other USCIS guidance, however, it is a useful resource that is available and the only option for a person who needs to travel abroad under such circumstances. We also find that the USCIS and Legacy INS have given considerable weight to such guidance letters and enforced them. Many complex issues of U.S. immigration law have only such letters as this on which people can rely on in the absence of law or regulations.
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Distinguish from Travel While Change of Status Pending
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This guidance should not be confused with the rule that a person who travels abroad and attempts to reenter the United States while a change of status is pending abandons the request for the change of status. In the question posed, the petition and the change of status had been approved before the person departed the U.S. While the example used was a change from F-1 to H1B, there are other scenarios in which the same logic presumably could apply.
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Conclusion
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This Hernandez letter is another helpful clarification on an issue that was previously not entirely clear. The conclusion is logical and it avoids the need for employers or individuals to make additional, extraneous filings or the need to travel abroad again to get back into legal status.