Present the Latest H1B Approval Notice to CBP

When an H1B visa foil (commonly referred to as a visa ‘stamp’) is issued, the consular officer typically annotates the visa with the petition number and expiration date of the I-797 approval notice presented at the U.S. consular post abroad. At the time of admission to the U.S. in H1B status, the foreign national applicant generally does not have to present a copy of the I-797 H1B approval notice to the U.S. Customs and Border Protection (CBP) officer at the border or port of entry (POE). Rather, the applicant may just present the visa and an unexpired passport, and the CBP officer normally will admit the applicant through the expiration date annotated on the visa. However, if after being issued the visa, the foreign national is granted a new I-797 approval notice with a later expiration date, which often occurs following the approval of a petition for an H1B extension or change of employer, failure to present the new I-797 at the POE likely will lead to being granted an I-94 with a truncated expiration date, and potentially lead to future status problems.

Visa Validity Background

As discussed in the MurthyDotCom NewsBrief, Validity of H1B Visa Stamp Following a Change of Employer (10.Nov.2016), as long as the H1B visa stamp is facially valid, it may continue to be used following the change to a different H1B employer, or after an H1B amendment or extension is granted. Each time an H1B amendment or change of employer is filed, however, the employer typically requests that the petition be approved for the maximum validity period of three years. If granted, this new expiration date obviously is not reflected on the existing visa stamp in the passport.

Present Latest Approval Notice at POE

Any time an H1B worker enters the United States to work pursuant to an approved petition that differs from the one listed on the visa in the passport, the applicant for admission should present the latest I-797 approval notice to the officer at the POE. This is especially important when the expiration date on the latest I-797 does not match the expiration date mentioned on the visa. Otherwise, the CBP officer very probably will limit the individual’s stay to the expiration date listed in the visa.

Potential Complications with an Incorrect I-94 Date

If the H1B worker fails to notice that the I-94 expiration date has been cut short, it could lead to an inadvertent overstay. Or, if the latest I-797 is approved with an expiration date that is earlier than the one listed in the visa, it could cause a CBP officer to grant status beyond what is permitted under the latest approval notice. In this latter situation, if the worker continues to work beyond the expiration date on the latest approval notice, it could be considered unauthorized employment and a violation of status.

H-4 Dependents Should Also Present Latest Approval Notice

As with an H1B visa stamp, a facially valid H-4 visa may continue to be used following a change in employer by the principal H1B worker (or if an extension is granted). When this occurs, in order to be granted an I-94 with the correct expiration date, the H-4 dependent should present a copy of the approved I-797 form that the principal is working pursuant to.

Conclusion

For many H1B workers, travel to and from the United States can quickly become routine. It is recommended that, as part of this routine, such nonimmigrants get into a habit of presenting the current approval notice to ensure that the latest I-94 card matches the validity dates of the current approval.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.