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Travel After Approval of an H-1B Petition

The U.S. immigration system is complex. U.S. immigration law takes supposedly simple ideas and breaks them down into what seem to be multiple, artificially contrived concepts. Much like your mother-in-law might do, U.S. immigration law takes simple actions and then tortures them with excessively complicated micro-analyses. It compares real life to mutually incompatible, arbitrary rules that no longer align with modern business or personal demands.

Because U.S. immigration breaks real life down into artificial concepts, travel becomes particularly complex. Travel means a person is departing the U.S., and while a person is physically outside the U.S., that person does not hold “status”. Travel also means, eventually, a re-admission to the U.S., which requires the correct entry document to ensure that grant of the correct status upon admission.H-1B Travel

This series of posts discuss the interaction between travel and H-1B status. It discusses the issue of travel from the perspective of a person who already is lawfully present in the U.S., but must temporarily depart sometime after the approval by USCIS of an H-1B petition.

Background

A foreign-born person who is lawfully in the U.S. for a temporary period of time (regardless of whether that is for a few months or for a few years) is a “nonimmigrant”. A “visa” is the travel document that enables a person to ask to be physically admitted to the U.S. “Status” is the bundle of legal rights that a person holds while physically in the US. A person’s “stay” is the amount of time that person is allowed to be in the U.S., holding that status.

A petition for the H-1B classification can be phrased in one of two ways. It can ask for a grant of “status” (for either an immediate or at a future date) at the same time as the H-1B classification is approved. This is how “extensions of status” are accomplished. Alternatively, it can ask for notification of the approval of the classification to be sent to a consulate or port-of-entry, so that the person can either apply for a visa stamp or otherwise seek admission to the U.S. These options are in addition to the fact that H-1B status begins by being more complicated than most – it can be “cap-subject” or “cap-exempt.”[1] Put together, this means that in any situation there is a minimum of four variables to consider when planning travel after an H-1B approval:

  • Did the H-1B approval grant status, or did it merely approve the classification?
  • Was the H-1B approval cap-subject or cap-exempt? Is this different from what the individual now holds?
  • Does the individual already hold H-1B status when departing the U.S., or a different status?
  • Does the individual hold an unexpired H-1B visa stamp?

If status is granted when a petition is approved, the Form I-797 H-1B approval notice includes a document (called a Form I-94 Arrival / Departure Record) that records the new period of “authorized stay” – as defined by a beginning and end date for the approved status. The Form I-797 itself begins by saying “The above petition and extension of stay have been approved. The status of the named foreign worker(s) in this classification is valid as indicated above.”

In contrast, if status is not granted, the Form I-797 petition approval notice does not include an I-94 record at the bottom, but instead directs the individual to apply for a visa or otherwise seek admission to the U.S.

Next: New Approval, Expired Visa Stamp

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[1] Congress originally limited the number of times that “new” H-1B visa status can be granted each fiscal year (which runs from October to September). These limits are called the H-1B cap or quota. More petitions are filed each fiscal year than are available under the H-1B cap. At the same time, certain exemptions from the H-1B cap were created in 2000, which include employment “at” certain institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or government research organizations. INA Section 214(g)(1), (5); 8 U.S.C. 1184(g)(1), (5). Changing from “cap-exempt” to “cap-subject” employment can be complicated. See Part 6 (hyperlink) of this Blog Series.

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