Travel After Change-of-Status Approval with Future Start Date08 Aug 2022
In 2004, the U.S. Citizenship and Immigration Services (USCIS) confirmed the continued validity of an approved change-of-status petition with a future start date, when a person travels abroad after such approval but reenters the United States before the future start date is reached. This clarification has been useful, especially for cap-subject H1B petitions, which typically request a future start date. This option is explained here for the benefit of MurthyDotCom readers.
How Does the Last-Action Rule Apply During International Travel?
The basic question posed to the USCIS in 2004 was, “What happens if the USCIS has approved one’s status and petition with a future start date and, thereafter, the individual travels outside of the United States, reentering in the present (unchanged) status prior to the future start date?” We know that, for one 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.
The USCIS responded that the travel does not change the equation. The USCIS, through Efren Hernandez, then 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 foreign national’s status governs.
Example: Filing a COS from F-1 to H1B with Future Start Date
The question posed to the USCIS assumes that one 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, moving the example to the present time, on May 1, 2022, the employer filed an H1B petition with an October 1, 2022 start date. The case is approved on August 23, 2022, 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 and optional practical training (OPT) is valid, so the beneficiary decides to travel outside the United States on August 25, 2022, returning to the U.S. on the F-1 on September 6, 2022, nearly a month prior to the H1B start date of October 1, 2022.
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, 2022, is still valid, or is the last action considered to be the F-1 admission reflected on the I-94 created at the U.S. port of entry on September 6, 2022.
USCIS Reasoning of “Later in Time” Governs
The USCIS stated that the change of status would take effect automatically on the effective date of the H1B petition / change-of-status notice of action of October 1, 2022, 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 update entered electronically at the port of entry, the change of status to H1B does not become effective until October 1, 2022, after the person’s entry into the United States.
USCIS Letter Guidance Applied
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. However, the USCIS has generally applied the analysis contained in the letter since 2004.
Distinguish from Travel While Change of Status Pending
This guidance should not be confused with the rule that a person who travels abroad 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 applies.
The 2004 Hernandez letter remains helpful and relevant even after many years. While it would be preferable for the USCIS to provide this guidance in a more formal matter (e.g., adding this to the USCIS Policy Manual), at least the letter provides a measure of confidence for foreign nationals who have to travel before the start date of an approved H1B petition goes into effect.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, originally from May 6, 2005, which remains relevant and has been updated for our readers.
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