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Travel with New H-1B Approval and Expired Visa Stamp

Travel After Approval of an H-1B Petition

This series of posts discusses the complexities of travel after approval of an H-1B petition. It discusses the issue 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 on his/her behalf.

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.

New Approval, Expired Visa Stamp

Travels outside the U.S. means a temporary relinquishment of the nonimmigrant status  previously  held while in the U.S.  During re-entry, documents must be presented to demonstrate that the individual is entitled to the status again.  So what happens after the USCIS approves a person to “ports”[1] to a new employer, but the unexpired H-1B visa stamp in his/her passport is for a prior employer?  Can the old visa stamp be used for travel with your new employer?

Yes. This issue was decided by the USCIS in a memorandum issued by Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations for the USCIS on January 29, 2001, entitled “INS Directive on Travel and AC21”. This process, called “visa revalidation” is available to an H status holder who

  • Is otherwise admissible;
  • Has a valid passport
  • Has an unexpired H-1B visa (endorsed for a prior H-1B employer),
  • Can demonstrate that s/he was previously admitted to the U.S. as an H-1B or otherwise accorded H-1B status, and
  • Can demonstrate that s/he is the beneficiary of an (approved) petition that was timely filed with USCIS.

If the above-listed conditions are satisfied, the individual may seek re-entry to the US using the old H-1B visa. Critical in this process is to present the new approval notice, so that the individual receives a grant of H-1B status for the duration of the newly approved stay.

Next: New Approval, Old Visa Stamp

Image: www.istock.com

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[1] 8 C.F.R. § 214(n).

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