travel while h1 extension pending

Travel while H1B Pending (Extension, Transfer, Amendment, COS)

You can travel while H1B is pending with USCIS. H1B Change of Status is abandoned. Transfer, Amendment travel allowed. For re-entry, you need valid H1B.

H1B Travel when Application Pending with USCIS : Travelling while your H1B application is pending approval is risky.

We do not recommend traveling unless you have a real emergency to go out of the USA especially when the Amendment is pending.

We recommend upgrading your H1B application to premium and get approval within 15 days before traveling to be on the absolute safe side.

You can learn quickly by watching this short story about traveling while H1b is pending.

This article will discuss:

H1B Change of Status is Pending Risks

H1b extension is pending uscis decision, h1b amendment is pending result, h1b transfer is pending approval.

You can travel outside the US while H1B change of status is pending.

The risk of travel is that USCIS will automatically abandon your Change of status request.

H1B Change of Status application status at the time of re-entry to USA:

#1 H1B COS APPROVED

You will have to get the hard copy of your approved H1B’s i797 and apply for an H1B visa at the US embassy before you can enter the USA with an H1B visa.

This is because your Change of Status was automatically abandoned by USCIS when you stepped out of the USA.

#2 Change of Status DENIED

If the H1B COS is denied while you are traveling, you can enter the USA only with any other visa you have.

#3 COS to H1B PENDING

You cannot enter using H1B status as the application is still pending. You need some other valid visa to enter the USA.

The underlying H1B application will be approved (if approved) with consular processing meaning that you will have to go to the US embassy to get H1B stamped in your passport and then re-enter the USA.

You can travel outside the USA during pending H1B extension. Make sure you have an existing H1B visa that is valid on the date of your re-entry to avoid trouble.

If your current H1B visa has already expired and you travel, you will NOT be able to enter the USA until your pending H1B extension is approved.

You can travel to India while H1B extension is in progress and visa is still valid for re-entry.

H1B extension status when you re-enter USA:

#1 H1B Extension APPROVED

You will have to get the hard copy of your approved H1B’s i797 and apply for an H1B visa at the US embassy before you can enter the USA with NEWLY approved H1B extended petition.

You can still enter using your OLD valid H1B (if any) but, your i94 will be restricted to old H1B’s expiry date.

This will be a problem as you will have to either file another H1B extension to get a new i94 or travel outside the USA again and get extended H1B stamped in your passport.

#2 Extension is DENIED

If the H1B extension is denied while you are traveling, you can only re-enter the USA if your existing H1B visa is still valid at the time of re-entry.

#3 PENDING Extension

You can still enter using your OLD valid H1B (if any) but, your i94 will be restricted to old H1B’s expiry date once it is approved.

You may not get a new i94 with approval.

You can travel internationally while your H1B amendment is still under process at USCIS but we recommend to NOT travel as re-entry risk is very high.

If your amendment status is approved, denied, or pending while you are outside the USA:

#1 APPROVED Amendment

You will need to get the new physical i797 approval shipped to you to re-enter the USA.

#2 H1B Amendment DENIED

You can re-enter the USA using existing H1B approval and stamp but will have to only work using the non-amended H1B.

#3 Amendment is PENDING

You can re-enter the USA using existing H1B approval and stamp but immigration officer will ask tough questions.

You may be denied entry if you have already started working based on the H1B amendment receipt. This is a very high-risk situation.
USCIS may not issue a new i94 once the amendment is approved as you exited the US.

If you want to enter the US to work with old approved H1B and old work location (not new location), then you are fine.

You should be able to enter the US without any issues.

Can I travel while my H1B transfer is pending: Yes, you can .

But, our suggestion is to avoid travel while H1B transfer is pending if you have already joined (started working) for a new employer-based on H1B receipt.

If you are still working with the current H1B employer and waiting for the H1B transfer result, you can travel.

Make sure your H1B stays valid at the time of your return to USA.

H1B transfer status when you re-enter USA:

#1 H1B Transfer is APPROVED

If you had already joined the new employer before leaving the USA, you are lucky. Get the H1B i797 hard copy mailed to you outside the USA and then get an H1B stamp using DS-160 in US Embassy.

If you do not want to get an H1B stamp, you can still enter the USA using your old employer’s H1B stamp is still valid.
Show the approved H1B transfer i797 at the immigration counter at the port of entry to get i94 with the H1B transfer expiry date.
If the immigration officer entertains your request, you are good.
If not, your i94 will be restricted to old H1B’s expiry date.

This will be a problem as you will have to either file another H1B transfer to get a new i94 or travel outside the USA again and get transferred H1B stamped in your passport.

#2 Change of Employer Transfer DENIED

If the H1B application is denied while you are traveling, you can only re-enter the USA if your existing H1B visa is still valid at the time of re-entry.

If you have moved on to a new employer, based on receipt, your old employer would have already withdrawn your H1B approval.

You will NOT be able to enter the USA if its already revoked.

#3 H1B Transfer PENDING

High risk if you have already started working with a new employer on receipt.

The immigration officer may deny your entry as you do not have the approved H1B for your current new employer.

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U.S. immigration basics

Can i travel while my h-1b is pending.

By Annie Blay

Perhaps you’re considering leaving the U.S. while you wait for your H-1B petition to be approved. Or maybe you want to apply for an H-1B but first need to know if it’ll impact your ability to travel.

The short answer is this: In most situations, you can travel internationally while your H-1B petition is pending.

The challenge? You need a valid H-1B stamp to re-enter the country. If you don’t already have a stamp, you’ll have to go to a U.S. consulate abroad first before returning to the U.S.

Getting an appointment at a U.S. consulate can sometimes be tricky, so a quick trip to Europe for a conference could easily turn into being stuck outside the U.S. indefinitely.

Below we outline the most common situations immigrants with pending H-1Bs find themselves in and how they impact travel.

What is an H-1B visa?

An H-1B provides foreign nationals with employment authorization at a U.S. company. To qualify for H-1B employment, applicants are typically required to have a Bachelor’s degree and a job offer in a field related to their degree.

To apply for an H-1B visa, the sponsoring company needs to send the following documentation to U.S. Citizenship and Immigration Services ( USCIS ):

Form I-129: an immigration form required for H-1B petitions
Form I-907: an immigration form for requesting premium processing (optional)
An approved Labor Condition Application (LCA) from the U.S. Department of Homeland Security (DHS)
Filing fees
Supporting documentation

H-1B applicants who are married or who have children under 21 can include their qualifying family members as dependents in their H-1B petition. Upon approval of the H-1B, their dependents will receive H-4 status.

Traveling When You Have an H-1B Petition Pending with USCIS

Whether you are permitted to travel while you wait for USCIS to review your H-1B petition depends on the type of H-1B petition you filed.

New H-1B Petition

If you leave the U.S. after filing an H-1B Change of Status (COS) petition, your COS will be considered abandoned and your petition will automatically be adjudicated as a Consular petition. This does not mean that your petition will be denied, but it does mean that you won’t be able to re-enter the U.S. on your new H-1B status without going to a U.S. consulate first.

What is the difference between H-1B Change of Status and Consular processing?

When your sponsoring employer files a new H-1B petition, they can select COS or Consular processing.

COS processing is only available when the beneficiary (you) is physically present in the U.S. on a valid status. When a COS petition is approved, your status is automatically changed to the new status—in this case, H-1B.

Consular petitions are different because they require you to attend a visa interview at a U.S. consulate abroad before beginning work on your new status in the U.S.

If you file a COS petition and then leave the country, your status cannot automatically be changed upon approval of your visa since you do not have a status when outside the U.S.

So, is it okay to travel with a pending COS petition?

Yes, you can leave the U.S. while your COS is pending as long as you know that your petition will effectively become a Consular petition.

The result? You will only be able to enter the U.S. on your new status (H-1B) if you attend a visa interview at a consulate abroad first.

Depending on where you’re trying to book your interview, the wait times can be anywhere between a few days and over a year. Be sure to research and contact local consulates ahead of time; otherwise, you may get stuck outside the U.S.

How do I know if my petition was filed with COS processing?

If you are unsure, check with your sponsoring employer or immigration team.

H-1B Extension of Status Petition

You can travel in and out of the U.S. while an H-1B extension is pending if you have an unexpired H-1B stamp in your passport.

When you re-enter the U.S., present your valid H-1B stamp from your old H-1B, as well as the receipt notice for your pending extension (or approval notice if your extension is approved).

H-1B Change of Employer Petition

You can travel in and out of the U.S. while an H-1B change of employer petition is pending if you have an unexpired H-1B stamp in your passport. When you re-enter the U.S., you will need to present a copy of your Receipt Notice (I-797) for your pending H-1B change of employer.

About the author:

Content Marketing Specialist

Before joining the marketing team, Annie helped over 60 Legalpad clients navigate U.S. immigration on the client services team.

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You must not travel outside of the U.S. while the petition is pending. Leaving the country while USCIS is reviewing your petition will cause USCIS to consider your petition for a change of status to be abandoned. Your underlying H-1B petition may still be approved, but you would have to depart the U.S. and apply for an H-1B visa abroad to re-enter the U.S. in H-1B status before you could start your H-1B employment.
Once USCIS approves your change of status petition, you may travel internationally. Your H-1B status will take effect on the date that was requested.
While travel, as outlined above, is permissible, you may encounter difficulties when re-entering the U.S. or when applying for a visa for your current status. Therefore, we recommend that you do not travel internationally from the moment your department starts the H-1B process with our office until your H-1B status takes effect.
Please note that you must be in the U.S. when the H-1B petition is filed with USCIS.
You must alert the International Center of any travel plans while your H-1B extension is pending with USCIS.
If you re-entered the US on the basis of your old Approval Notice, you would only be admitted until the expiration date of the old H-1B Approval Notice and you would likely have to travel again to have this corrected.
If you must travel while your extension is pending and your H-1B status has expired, you will need to remain outside of the U.S. until your H-1B petition is approved. Your case may be converted to premium processing to accelerate the adjudication process.
If you are changing employers, you may travel while the U-M H-1B petition is pending. However, travel during this period is not recommended as you will need a valid H-1B Approval Notice and visa to re-enter the US. If you have a valid H-1B approval from your previous employer you may use that in conjunction with your U-M H-1B petition and Receipt Notice. Should your previous employer have withdrawn its H-1B petition - which is likely - you cannot use your previous H-1B approval. Therefore, it is strongly recommended that you do not travel internationally during this period as you may not be able to return until your U-M H-1B petition has been approved .

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Travel On H1B Visa While H1B Petition Is Pending:

Things you must know, introduction.

You are in the US, an H1B petition has been filed on your behalf and is pending, and you need to travel outside the US on a family emergency. What can you do? It is a common dilemma that many H1B workers find themselves in.

Let us examine when travel on H1B is safe while an H1B petition is pending, and the contexts when H1B travel outside the US can have an adverse effect on the H1B process.

A. Travel On H1B While An H1B Petition Is Pending

Foreign nationals in H1B status can travel outside the US and re-enter the United States as long as they have a valid H1B nonimmigrant visa stamp in their passport. Let’s examine the nuances of travel on H1B when an H1B petition is pending.

NOTE: It’s always safe to travel after H1B approval.

DID YOU KNOW? Canadian H1B holders are visa exempt and can travel as long their H1B petition validity dates have not expired.

1. Travel on H1B While H1B Extension of Stay or H1B Amendment Is Pending With The Same Employer

If an H1B petition to extend and/or amend H1B status with the same employer is pending with U.S. Citizenship & Immigration Services (USCIS), the H1B employee may be able to travel on H1B if:

a. He/she is traveling on an unexpired H1B visa

b. He/she is going to return to the US before the expiration of the current H1B approval notice.

Simply put, if the individual’s original H1B status has not expired, then H1B travel outside the US is generally allowed.

Act Now - free spots fill up fast!

2. Travel Outside The US When Beneficiary Does Not Have A Valid H1B Visa

If an H1B extension of stay petition has been filed and the employee does not have a valid H1B visa, he/she will be able to get an H1B visa stamp if travel abroad is undertaken and the underlying H1B petition is still valid.

If an H1B Amendment petition has been filed and the employee has already begun working pursuant to the terms of the amended petition, the employee cannot seek to obtain a new visa stamp until the amendment is approved. Travelling outside the US in this scenario is not recommended.

3. Travelling Outside The US While An H1B Change of Employer Petition Is Pending

If an H1B petition is filed for a Change of Employer and the H1B employee begins working for the new employer under AC21 H1B Portability , the H1B employee may be able to travel on H1B while the petition is pending if:

a. He/she is traveling on an unexpired H1B visa;

b. He/she was previously lawfully admitted and has maintained their H1B status; and

c. He/she is carrying the H1B Receipt Notice (I-797, Notice of Action) for the Change of Employer petition.

The H1B employee cannot travel outside the US, however, if he/she does not already have a valid H1B visa stamp in the passport. If the H1B employee travels out of the US and does not already have a valid visa stamp in the passport, he/she will need to wait for the H1B approval and then obtain the H1B visa stamp before being able to re-enter the US.

DID YOU KNOW? If an H1B Change of Employer petition is pending but the employee has decided to remain with his or her current employer, then travel outside the US is not an issue as long as the employee has a valid H1B approval notice and H1B visa stamp (or can obtain one before re-entering).

4. H1B Petition Is Adjudicated While The Employee Is Travelling Outside The US

If the H1B Extension of Stay petition or Change of Employer petition is adjudicated while the H1B employee is outside the US, he/she has several options:

Requirements To Travel After H1B Approval.

My Case Scenario Elizabeth

Elizabeth is in the US in H1B status. She is working for XYZ, Inc. Her H1B status expires in 2 months and her employer has already filed an H1B Extension of Stay on her behalf. Elizabeth needs to go out of the country on urgent business. She has a valid H1B visa stamp in her passport. Can she travel outside the US?

Yes, Elizabeth will be able to travel on H1B visa and re-enter the US with the previously issued H1B visa stamp and H1B approval notice. Once she re-enters and after the H1B petition is approved, her status will be extended. If the H1B extension of stay petition is approved while she is abroad, her employer should send her the approval notice. She can then use the new approval notice and existing visa stamp to re-enter the U.S. CBP should give her an I-94 that matches the expiration date of the new approval notice.

B. Travel Outside The US While H1B Change Of Status Is Pending

Foreign nationals in valid nonimmigrant status may have an employer file an H1B Change of Status petition on their behalf. Lets examine the various scenarios when a need to travel outside the US arises while the Change of Status petition is pending.

1. Travel Outside The US When H1B Change Of Status Petition Is Pending

Travel outside the US while an H1B Change of Status petition is pending will result in automatic abandonment of the request to change status. In this scenario, USCIS may still approve the request for H1B by the employer, but the change of status request should be denied.

The beneficiary may only return to the US in their previous nonimmigrant status (if still valid or applicable) or the beneficiary must wait until the H1B petition is approved so that he/she can obtain an H1B visa stamp with which to re-enter the US.

DID YOU KNOW? If a Beneficiary travels outside the US while an H1B Change of Status is pending, USCIS may inadvertently approve the change of status. Beneficiaries who returned to the US in the previously held nonimmigrant status should not rely on this approval. In order to activate the H1B, the beneficiary must leave the US and obtain an H1B visa stamp and re-enter or the employer must file a new Change of Status/Amendment petition.

2. Travelling Outside The US When H1B Change Of Status Petition Is Approved With A Future Start Date

If an H1B Beneficiary is travelling outside the US after an H1B petition is approved with a future start date but is re-entering the US before the validity of the H1B begins , the foreign national may enter the US in the previously held nonimmigrant status. The foreign national’s nonimmigrant status will then change to H1B as of the date of the H1B validity start date.

IMPORTANT If an H1B Beneficiary undertakes a travel outside the US after an H1B petition is approved with a future start date but is re-entering the US after the validity of the H1B begins in another nonimmigrant status, the H1B Change of Status is effectively abandoned.

Elizabeth was in H4 status and an H1B Change of Status petition was filed on her behalf. While the H1B Change of Status was pending, she traveled outside the US. The H1B was approved when she was abroad. What effect does that have on her H1B? What were her options to return to the US?

When Elizabeth left the US while the H1B Change of Status was pending, the request for Change of Status was abandoned. Elizabeth would have had 2 options to re-enter the US:

Obtain an H1B Visa stamp at the US Consulate once the H1B was approved and travel on H1B visa to re-enter the US in H1B status.
Return to the US with a valid H4 visa to resume her H4 status. With this option, once the H1B was approved, she would have to leave the US again to obtain an H1B visa and re-enter OR her employer would have file a new H1B petition to change her status.

Travelling outside the US while an H1B petition is pending has numerous pitfalls and can be risky unless the employee is armed with the accurate information, and proper precautions are taken before undertaking the H1B travel outside the US.

If you have any queries about travel on H1B visa, or travel outside the US while an H1B petition is pending, or need assistance filing for a US visa or Green Card, contact VisaPro for a FREE Immigration Lawyer Consultation .

We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.

What VisaPro Customers Are Saying

Knowledgeable, fast, courteous, efficient are all words that describe the services I received from VisaPro. They were very helpful in all phases of the H-1B visa process and they got it right the first time. I have tried other Visa services, but VisaPro is the best by far. VisaPro is the only way to go!"

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Office of International Students & Scholars

Traveling in h-1b status, h-1b travel document checklist.

Valid I-797 Approval Notice for Yale University
Copy of all supporting documents issued to you in OISS Connect including the Beneficiary Copy of your petition (forms including the I-129 and the Labor Condition application, along with Support Letter and other petition documents)
Copy of paystubs from Yale for the most recent three months
If you were subject to the J-1/J-2 two-year home-residency requirement prior to obtaining H-1B, bring a copy of your Form I-612 Waiver Approval issued by USCIS.

International travel with H-1B status can be complicated. Below are some basic guidelines with which you should be familiar. However, it is recommended that you check with your adviser before you travel if you have any questions about your situation.

Please refer to the Arriving in the U.S.: Immigration Inspection page for a full list of all documents.

All international scholars/employees and family members planning to depart from the U.S. and return after a temporary absence must have a valid passport in order to exit the U.S. The passport must also be valid for a minimum of six months into the future at the time of re-entry to the U.S. Some countries have an agreement with the U.S. that automatically extends passport validity for 6 months , for U.S. entry purposes only. Please make sure to review the information in the Passport Expiration section below.

Except for Canadian citizens, all international scholars/employees and family members will also need to have a valid H-1B/H-4 visa stamp in their passport issued by a U.S. embassy or consulate abroad. Visa stamps cannot be obtained or renewed inside the U.S.

The only exception to this is the limited pilot program that the Department of State is running for the renewal of certain H-1B visas . You can find more information about this limited program on this page . The Department of State indicated that they plan to expand this program in the future and we will update our website as more information becomes available.

I-94 Record

H status holders are given a specific departure date on the I-94 and must depart the U.S. by this date. It is critical that you know and check this date upon every entry to the U.S. Check also an ink entry stamp with an annotation (the visa type and validity date) given in your passport upon entry. If the visa type and/or validity date do not match your H-1B approval notice, you must speak with your OISS adviser . Please also see the Passport Expiration and I-94 Validity sections below.

General Guidance for Traveling and Re-entering the U.S.

H-1B Travel Considerations

Change to h-1b status.

Scholars/employees are advised to not travel outside the U.S. during a pending change of status H-1B petition (e.g., those who are changing from an F-1/J-1/Other to H-1B), as international travel will complicate your work authorization eligibility/immigration status. If you have an unavoidable reason that requires you to leave the U.S., please consult with your OISS adviser before making your travel plans.

Extension of H-1B Status

If you must travel outside the U.S. during the H-1B extension process, you should speak to your OISS adviser as soon as possible before making your travel plans. Because your travel plans may affect your H-1B extension processing timing, you must coordinate closely with your OISS adviser.

If you plan to return to the U.S. before the expiration of your current approved H-1B status and with a valid H-1B visa stamp, there may not be any difficulty.
However, depending on when the H-1B extension petition is submitted to USCIS, your international travel plans may complicate your H-1B status; therefore it is highly recommended to travel with the extension approval. This may require premium processing .
If you travel after the H-1B extension petition is approved but will return before the current H-1B petition expiration date, it is advisable to travel with both the current and new approval notices. If your H-1B visa stamp is valid on your reentry date, you may use it for admission.
If you plan to leave the U.S. while the extension petition is still pending and your current H-1B status is expired, you cannot return to the U.S. until the extension petition is approved. The approval notice must be sent to you abroad. You also have to apply for a new H-1B visa stamp with a consulate or embassy before you can return to the U.S.
After you have received the new H-1B extension approval notice, you may travel outside the U.S. once again. However, while outside the U.S., you will have to obtain a new H-1B visa stamp at a U.S. embassy or consulate. It is normally not possible to obtain visa stamps inside the U.S. and the only exception to this is the limited pilot program that the Department of State is running for the renewal of certain H-1B visas . You can find more information about this limited program on this page .

Changing H-1B Employer to Yale

If you have any plans to travel outside the U.S. during the portable H-1B (changing employer) process, you should speak to your OISS adviser as soon as possible.

If you plan to return to the U.S. before the expiration of your current approved H-1B petition with an old employer and with a valid H-1B visa stamp, there may not be any difficulty. However, if your return date to the U.S. is after your start date with Yale, you may have difficulty at a port of entry.
Depending on when the portable petition is submitted to USCIS, your international travel plan may complicate your H-1B status with Yale; therefore it is highly recommended to travel with the portable H-1B approval. This may require premium processing .
If you travel after the portable petition is approved and after your start date at Yale, you must travel with the new approval notice for the Yale appointment. If your H-1B visa stamp is valid on your reentry date, you may use it for admission, even if the visa stamp may have your old employer's name on it; however, make sure to present your Yale H-1B approval notice upon entry to obtain the correct H-1B status validity on your I-94. Check your I-94 validity and an ink entry stamp given in your passport as soon as possible upon your entry.
If you plan to leave the U.S. while the portable petition is still pending and your current H-1B petition with the old employer is expired, you cannot return to the U.S. until the portable petition is approved. The approval notice must be sent to you abroad. You will also have to apply for a new H-1B visa stamp with a consulate or embassy before you can return to the U.S.
After you have received the portable H-1B approval notice, you may travel outside the U.S. once again. However, while outside the U.S., you will have to obtain a new H-1B visa stamp at a U.S. embassy or consulate. It is normally not possible to obtain visa stamps inside the U.S. and the only exception to this is the limited pilot program that the Department of State is running for the renewal of certain H-1B visas . You can find more information about this limited program on this page .

Passport Expiration

If you or your H-4 dependents are traveling with a passport that will expire before your H approval end date, you will be admitted to the U.S. only for the duration that your passport is valid. This means that your I-94 and legal stay in the U.S. will end earlier than your H-1B approval end date. You will be required to renew your passport and may need to travel outside the U.S. again to be admitted for the full duration of your H approval. If you are in H-1B status and do not travel, Yale will be required to file an H-1B extension on your behalf. H-4 dependents who do not travel will need to file an extension of their H-4 status. It is your responsibility to communicate any status issues to your OISS adviser .

I-94 Validity

Please pay extra attention to your most recent I-94 record and make sure that you will not inadvertently lose H-1B status and work authorization . At the immigration officer's discretion, some H visa holders may be given a 10-day grace period reflecting on their I-94. The grace period is outside the approved H-1B petition period that allows you to work in the U.S. Do not confuse this with H-1B validity date mismatch and speak with your OISS adviser .

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Travel and Pending H-1B Petitions

If you are being sponsored by Tufts University for H-1B employment, read below for important information for issues relating to travel while an H-1B application is pending. The information is divided between persons who are in the US in another status who need to change to H-1B status; and persons who are already in H-1B status and seeking to extend their status.

Changing to H-1B Status from Another Status

Tufts is allowed to submit H-1B petitions requesting H-1B status up to six months before the anticipated start of H-1B employment at Tufts.

For new employees, the H-1B start date is usually the first date of Tufts employment. However, if you are already working at Tufts under a different type of work authorization that is due to expire, the H-1B start date can be a specific date identified by you, your department, and the International Center. For example, if you are working at Tufts using F-1 post-completion Optional Practical Training (OPT), then your H-1B start date might be a date on or around the time your OPT benefit expires.

H-1B petitions can take 1-3 months to prepare internally. In addition, USCIS (US government) processing time under standard processing can take another 6+ months. If your status needs to be changed by a specific date in order for you to work lawfully for Tufts, the International Center will recommend to departments that they use premium processing service, which reduces US government processing times to around 30 days in most cases.

All immigration processing is subject to seasonal demand as well as unanticipated processing delays, so please note that offering a guaranteed result on a specific timetable is not possible.

If you are in the US in a different status (e.g., F-1 status, J-1 status) and are changing to H-1B status, you SHOULD NOT travel outside of the US once the H-1B application has been submitted to USCIS on your behalf .

If you leave the US while the application is in process with USCIS, then the change of status will be denied, and you may need to restart the process by remaining outside the US until that time you are able to get a new H-1B visa at a US consulate. Or, if you leave and return to the US during the change of status process, you will need to plan on departing the US again, applying for an H-1B visa, and re-entering with the new visa. This may cause significant delays to your H-1B start date as well as added and unanticipated travel costs.

If international travel is necessary, please consult with your International Center advisor and provide full travel details . Instead of doing a change of status, we will need to process your application for consular processing so that you can obtain an H-1B visa at a US consulate and return to the US in H-1B status.

If your change of status is approved, your status will change to H-1B status on the date of the H-1B approval.

However, the change of status approval is only to allow you to remain in the US in H-1B status. If you later travel internationally, you should plan enough time to go to a US consulate to apply for an H-1B visa. You will need a H-1B visa in order to return to the US following international travel. We recommend traveling only in consultation with your department and when there is enough time to accommodate possible consular processing delays and backlogs.

(Note: Canadian citizens are not required to obtain visas and may return in H-1B status with their H-1B approval notice and other documents.)

See our Travel Resource Center for more information about travel requirements.

If you are currently in another status and also have dependent family members (your legal spouse and/or unmarried minor children under 21 years of age), they will need to submit separate applications to change their status to H-4 status. For example, dependents in F-2 status would apply to change to H-4 status, at the same time Tufts submits a petition requesting a change in your status from F-1 to H-1B status.

H-4 dependents may accompany the H-1B employee as long as the employee is maintaining valid H-1B status and they meet the definition of dependent status. Please read more about the benefits and limitations of immigration status for H-4 dependents .

Changes to H-4 status are done through a separate application form, USCIS Form I-539 . The International Center is not authorized to complete Form I-539 for individual family members, although we will do a courtesy inspection to make sure the form is complete and is accompanied by the correct fees. You may complete the I-539 yourself, or rely on the services of an immigration attorney to complete the form for you. If you would like a referral to a local attorney, please contact your International Center advisor.

Extension of H-1B Status (Current H-1B Employees)

Tufts can start an H-1B extension petition as early as six months prior to the start of the extension period. For example, if your current H-1B authorization expires on June 30, we can initiate the extension process as early as January 1, or six months before the expected extension start date of July 1.

While the International Center makes every effort to notify departments of upcoming expiration dates, any extension process must be initiated by the sponsoring department. Please talk to your department about your eligibility for an extension and about timing.

Extension petitions can take 2 to 3 months to prepare and an additional 6+ months for USCIS processing under standard processing, or one month (in most cases) with premium processing. Extensions must be submitted to USCIS no later than the last day of your current H-1B authorization. Once submitted, your work authorization will be extended temporarily for up to 240 days or until the extension petition is approved or denied.

If you need to travel internationally while the extension petition is in process, and certainly following the expiration of your current authorized period of employment, you must notify your International Center H-1B advisor responsible for managing your specific case.

You must be in the US when the H-1B extension petition is actually filed with USCIS. Once filed, you may continue to travel internationally and should be able to return with your existing H-1B visa and I-797 approval notice while the extension is still pending with USCIS.

If your extension is approved while you are outside the US , however, you should wait to return with a copy of your updated approval notice to ensure that you are granted admission for the entire period covered by your extension. You must also be sure that your H-1B entry visa is still valid. If your H-1B visa has or will expire, you will need to apply for a new H-1B visa at a US consulate in order to return. Please review our Travel Resource Center for more details.

If your change of status is approved, you may continue to remain in the US in your H-1B position. However, if you later travel internationally, you should plan enough time to go to a US consulate to apply for an H-1B visa, if your current visa has expired or will expire by the date of your anticipated return. We recommend traveling only in consultation with your department and when there is enough time to accommodate potential consular processing delays and backlogs.

H-4 dependents (including your legal spouse and/or unmarried minor children under 21) must apply separately for any extensions of their H-4 status. H-4 status eligibility is based on extension of your H-1B status.

Extensions of H-4 status are done through a separate application form, USCIS Form I-539 . The International Center is not authorized to complete Form I-539 for individual family members, although we will do a courtesy inspection to make sure the form is complete and is accompanied by the correct fees. You may complete the I-539 yourself, or rely on the services of an immigration attorney to complete the form for you. If you would like a referral to a local attorney, please contact your International Center advisor.

Please let your International Center advisor know that you have dependent family members, so that we can coordinate submission of both your H-1B petition and the I-539 petitions for your family to USCIS at the same time. In most cases it is advantageous for H-4 extension requests to be submitted alongside the University's I-129 extension petition for the H-1B employee.

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Travel on H-1B Visa

Travel during the visa request process.

Always discuss your travel plans with the International Scholars Operations (ISO) team before traveling internationally and before any petition is filed with U.S. Citizenship and Immigration Services (USCIS) on your behalf.

Changes of Status

If you are in the U.S. and attempting to change your status to H-1B, or if your dependents are applying for a change of status to H-4, do not travel outside the U.S. while the petition is pending with USCIS. USCIS may say that you have abandoned the petition and deny your change of status. In this situation, you would have to exit the U.S., apply for a new H-1B visa stamp, and reenter as outlined in Coming to the U.S. page .

Extensions of Status and Changes of Employer

You can travel internationally and reenter the U.S. while your H-1B status is being extended or transferred from one employer to another, provided you have a valid I-797 Approval Notice and a valid H-1B visa (unless visa-exempt or eligible for automatic visa revalidation). If your current H-1B expires before you return, you may have to wait until the H-1B extension is approved to reenter.

Returning to the U.S. after a Temporary Absence

When returning to the U.S. after a temporary absence, be prepared to show the following to the Customs and Border Protection officer:

Original and unexpired Form I-797 Approval Notice.
Passport valid for at least 6 months beyond the end date of your expected stay.
Letter from your UW host department confirming you are returning to continue full-time employment in the job described in the I-129 petition.
These were forwarded to you by your host department. If you cannot locate them, contact ISO .
Note: If the visa has expired, it may be extended by presenting the documents listed above to a U.S. consulate . Anticipate delays due to security reviews. For information about the visa process and to schedule an interview appointment, contact the U.S. consulate in the city where the application will be submitted.

Short Travel to Canada or Mexico under Automatic Visa Revalidation

A valid H-1B visa stamp (or H-4 visa stamp) is not required for reentry to the U.S. following a visit of less than 30 days in Canada or Mexico, as long as you have a valid H-1B approval notice. This is called automatic visa revalidation. However, if you apply for a new visa while in Canada or Mexico, you will not be able to return to the U.S. unless the visa is granted.

Automatic visa revalidation is not available to nationals of countries on the State Sponsors of Terrorism list .

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! Penn State will use International SOS as the University's travel risk management partner as of August 15, 2023. For information about the change and how it affects university-affiliated travelers, visit the International Insurance for University-affiliated Travel webpage .

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To reenter the U.S. after international travel, you must present to U.S. Customs and Border Protection the following documents:

H-1B visa stamp (Canadians are exempt)
Original H-1B Approval Notice (Form I-797A)
Original employment verification letter on Penn State letterhead from department
Copy of Labor Condition Application (ETA Form 9035)
Copy of H-1B petition (Form I-129)
Copy of USCIS Letter of Support submitted with the petition
Copy of three (3) most recent payslips (Workday PDF)

Visa Stamp: Visa stamps can be confusing if you obtained your H-1B status within the U.S. or if your H-1B status was extended in the U.S., since these processes do not generate visa stamps. These processes only change or update your status within the U.S. You must apply for an H-1B visa stamp during the first time you travel internationally after obtaining H-1B status or your H-1B extension.

Fee: $190

CONCERNS OF TRAVEL WHILE H-1B EXTENSION IS PENDING

International travel while an extension of status petition is pending with U.S. Department of Homeland Security is permissible. Please note that you must be in the U.S. when the H-1B petition extension is filed. If the extension is approved while you are abroad, you must reenter the U.S. using the new Approval Notice. This means that the documents must be sent to you while you are abroad.

If you reenter the U.S. on the basis of your old Approval Notice, you will be admitted only until its expiration and not the extension. This will require the filing of another extension petition.

REQUIRED ACTIVITIES FOR MAINTAINING STATUS

As an H-1B temporary worker, you must work only for the employer who filed the H petition under the same conditions described in the H-1B petition (e.g. title, duties, hours, campus).

International Faculty Advising (IFA) in International Student and Scholar Advising (ISSA) must be notified of any changes in your job before they happen.

If the employer/employee relationship ends, then the H visa class based on the job ends. You must leave the U.S. or another employer must file another H petition on your behalf for the new employment.

An H-4 dependent spouse or child is only in status while the H-1B is in status.

CHANGE OF ADDRESS REPORTING

You are required by U.S. law to report a change of address to USCIS within 10 days of the change. You can file your change of address with USCIS online .

EXTENSIONS OF EMPLOYMENT AUTHORIZATION AND STAY

As an H-1B temporary worker, you are admitted only until the end date listed on your most recent I-94 and may work only until that date. The U.S. Citizenship and Immigration Services (USCIS) must receive your extension of stay before the expiration date on the I-94. This extension of stay may be filed up to six (6) months before the I-94 expiration date. If you wish to apply for an extension, you should contact International Faculty Advising at least six (6) months before your current stay expires. Please note than as an H-1B temporary worker, you can remain in this visa class for up to six (6) years only, unless you are at a certain point in a green card application.

As an H-1B temporary worker, you automatically extend your employment authorization when you extend your stay in this visa class. As long as you file your application for extending the stay in a timely manner (before your current status expires), you may continue employment for the same employer while the request for extension is pending with USCIS for up to 240 days beyond the expiration of the prior period of stay.

H-4 DEPENDENTS

Dependents of the H-1B temporary worker are in H-4 status.

H-4 dependents cannot be employed, unless your H-1B spouse has an approved I-140 petition.
H-4 dependent extensions are usually filed at the same time as your H-1B extension by completing a separate I-539 form.
H-4 applications are no longer being adjudicated with the H-1B petitions. This means that your H-1B could be approved months before your H-4 dependent.
H-4 children may attend school. However, they must obtain their own status by the time they are 21 years old.

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Travelling while an H-1B Petition is Pending at USCIS

Travel While an Extension of H1B Status is Pending

An H1B nonimmigrant employee is permitted to travel while an application for Extension of the H-1B Status is pending, provided they are traveling on an unexpired H¬I B nonimmigrant visa, except where exempt under the visa exemption regulations, and can show that they are returning to the U.S. to continue the previously approved H1B employment.

Under Section 222(g) of the Immigration and Nationality Act (“INA”), a nonimmigrant alien that stays in the U.S. beyond the expiration date indicated on their I-94 will cause their visa to become automatically revoked, and consequently the alien will not be able to return to the US unless he or she obtains a new visa. However, the alien’s visa will remain valid where a timely, non-frivolous, application for Extension of Status or Change of Status is filed, and where the alien has not engaged in unlawful employment.

Travel While a Petition is Pending for a Change of H-1B Employer

An H1B nonimmigrant employee is permitted to port their H1B visa to another company, pursuant the American Competitiveness in the Twenty-first Century Act of 2000 (“AC-21”) upon the filing of an 1-129 petition for the subsequent employer.

Under this scenario, the H1B employee is permitted to travel on the previously issued visa, where they can show:

1) they are otherwise admissible to the U.S.;

2) they are in possession of a valid unexpired passport and visa, including a visa endorsed with the name of their previous employer as petitioner;

3) they can show that they have previously been admitted in H1B status; and

4) they are in possession of the Form 1-797 receipt notice showing that a new petition has been timely filed.

The new petition is not a substitute for a valid visa.

A new visa cannot be issued for the new employer until the new petition is approved.

Therefore, if the employee’s original visa has expired, and they leave the U.S. prior to the new petition being approved, they will be forced to remain outside the U.S. until the new petition is approved.

In these cases it is recommended to use the USCIS Premium Processing service, under which the petition should be adjudicated within 15 calendar days.

The Last Action Rule

One issue that arises when an alien travels on their H1B visa while a petition for Extension of Status or for Change of H1B Employer is pending is the issuance of two 1-94s and the question of which 1-94 is controlling.

This rule states that the 1-94 with the latest effective date is the controlling document, and the applicant’s period of authorization and H-1B petitioner are determined by this 1-94.

Because of the last action rule, aliens with pending applications for Extension of Status, or a Change of Status with a request for a later expiration date, should be warned that if the application is approved while they are abroad and they return to the U.S. on their original visas the new 1-94 issued upon their entry into the U.S. will trump the I-94 attached to the Notice of Approval and the 1-94 with the earlier expiration date will be controlling. In such situations, a new application for Extension of Status will be required.

A beneficiary for an application for Change of Status will be considered to have abandoned their application if they travel while the application is pending.

Travel When the Petitioner has Undergone a Change in Ownership

There are times when an H1B employer/petitioner is subject to ownership changes, such as a merger or an acquisition.

In some instances the new organization can qualify as a “successor-in-interest” to the original petitioning company, and an amended petition is not required.

An H1B employee who works for the new corporate entity claiming exemption from the requirement to file an amended petition can continue to travel on an existing valid H1B visa where he is otherwise admissible and presents a letter from the new corporate entity stating that:

1) the flew corporate entity has succeeded to the interests and obligations of the original H- 1B petitioning employer; and

2) the terms and conditions of employment of the H1B nonimmigrant remain the same.

Travel While a Change of Status to H1B Nonimmigrant Status is Pending

For many nonimmigrants, travel on their nonimmigrant visas will result in the abandonment of a pending Form 1-485 Application for Adjustment of Status.

These nonimmigrants must apply for, and wait to receive, an 1-512, Advance Parole Authorization prior to traveling outside the U.S., otherwise their 1-485 is automatically abandoned and they may find themselves stuck abroad unable to return to the U.S.

However, H1B nonimmigrant aliens with valid H1B visas are eligible to continue traveling on their visas, while their Form 1-485 Application for Adjustment of Status is pending with the USCIS for adjudication.55 The reason being is that the H1B is a “dual intent” visa, that permits the alien to maintain H1B status even though an immigrant visa or permanent residency application has been filed. The alien must present their valid nonimmigrant visa, provide evidence that they are returning to the U.S. to continue employment with the petitioning employer, and must remain eligible for the H status upon return to the U.S. Regulations previously required that the alien also present the original Form 1-797 Notice of Receipt for the Application for Adjustment. However, this requirement has been removed from the regulations, effective November 1, 2007, as USCIS was not always able to issue these notices in a timely manner and CBP did not always request them.

While an H1B nonimmigrant employee is not required to present an 1-512 Advance Parole Authorization, if the H1B nonimmigrant possesses both a valid 1-512 and a valid H1B visa nonimmigrant visa, the alien has the choice to enter the U.S. using either the H1B visa or the I-512. In order to enter on the H1B visa, they must be able to show that they remain eligible for H1B visa status, as explained above.

If the alien chooses to enter the U.S. using the I-512, they are accorded parolee status, and will usually obtain a one-year expiration date on their 1-94s. However, if they fail to obtain separate employment authorization, they will not be considered to have worked without authorization, if they continue to work for the H1B visa employer . The alien will also be eligible to apply for an extension of their H1B status, which will have the affect of terminating the grant of parole and admitting the alien in H1B visa status. Choosing to enter the U.S. on the I-512 does not bar the alien from choosing to enter the U.S. on their valid H1B visa at a later date as the alien is able to alternate between the two.

The applicant’s choice to enter on the 1-512 can have a serious affect on their spouse and children in the U.S. on H-4 derivative status, as 8 CFR 245.2(a)(4)(ii)(C) states that “The travel outside of the Unites States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceedings and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1B or L-1 visa status and the alien remains otherwise eligible for H-4 or L-2 visa.

Therefore, if the H1B visa nonimmigrant alien chooses to reenter the U.S. on the I-512, they are no longer in H-I B status, which means their spouse and children may no longer be eligible to receive H-4 visas and travel outside the U.S. by virtue of being H-4 derivatives. Therefore, their travel abroad without an I-512 could be construed as an abandonment of a pending application for adjustment of status.

Related Links: H1B Visa Cap / Quota for FY 2020 H-1B Visa Overview H-1B Visa Renewal / Extension H-1B Visa Transfer Amended H-1B Visa New H-1B Visa, Cap Exempt H-1B Visa for Entrepreneurs H-1B Visa for Teachers H-1B Visa Attorney Fee H-1B Visa Complete Do it Yourself Kit

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Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations

ALERT : Although F-1 nonimmigrant students with degrees in science, technology, engineering, or mathematics (STEM) may apply for a 24-month extension of their post-completion OPT employment authorization, our policies regarding the cap-gap extension remain the same. An F-1 student who is the beneficiary of a cap-subject H-1B petition and request for change of status that is filed on time may have their F-1 status and any current employment authorization extended until the first day of the new fiscal year.

The “cap-gap” period starts when an F-1 student’s status and employment authorization expires and, unless terminated, ends on Oct. 1, the required start date of the H-1B cap-subject petition filed on their behalf if seeking cap-gap authorization.

Cap-gap occurs because an employer may not file, and USCIS may not accept, a cap subject H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1 for the following fiscal year, which starts Oct, 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is Oct. 1, but the beneficiary’s OPT employment authorization may expire before the H-1B start date.

Current regulations allow certain students with a pending or approved cap-subject H-1B petition to remain in F-1 status during the cap-gap period. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur were F-1 status not extended for qualifying students.

Cap-subject H-1B petitions that are timely filed for an eligible F-1 student that request a change of status to H-1B on Oct. 1 qualify for a cap-gap extension.

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the applicable H-1B filing period, which begins April 1 and while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period commonly known as the "grace period"). A cap-subject H-1B petition will not be considered to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year, unless the registration requirement is suspended.

Once the petitioner timely files a request to change status to H-1B on Oct. 1, the automatic cap-gap extension will begin. If the student’s H-1B petition is approved (or selected and approved if the registration requirement is suspended), the student’s cap-gap extension of status will continue through Sept. 30. The cap-gap extension of status will automatically terminate if the student’s H-1B petition is denied, withdrawn, revoked, rejected, or is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing. The student will have the standard 60-day grace period from the date the extension of status terminated or their program end date, whichever is later, to depart the United States (however, the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied or revoked due to a status violation, misrepresentation, or fraud).

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Please note: F-1 students who have entered the 60-day grace period are not authorized to work. If an H 1B cap-subject petition is properly filed for a student who has entered the 60-day grace period, the student will receive the automatic extension of his or her F-1 status, but will not be authorized to work since the student was not authorized to work at the time H-1B petition was filed.

F-1 students who do not qualify for a cap-gap extension and whose periods of authorized stay expire before Oct. 1 are required to leave the United States. They then need to apply for an H-1B visa at a consular post abroad, if applicable, and seek to be readmitted into the United States in H-1B status for the dates reflected on the approved H-1B petition.

Additionally, the cap-gap provision applies only to beneficiaries of cap-subject H-1B petitions, not to beneficiaries of cap-exempt H-1B petitions .

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new Employment Authorization Document (EAD) to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, issued to the student by their Designated School Official (DSO). This document serves as proof of continued employment authorization.

If a student chooses to obtain an updated Form I-20, they should provide their DSO with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an updated Form I-20, showing an extension until June 1.

The student should return to their DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, indicating that the petition was filed and accepted. The Form I-797 must have a valid receipt number. The student’s DSO will issue another updated Form I-20, showing an extension until Oct. 1. In such situations, the student can continue to work while the update to their Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.

If an H-1B petition filed for an F-1 student with a cap-gap extension is denied, rejected, revoked, or withdrawn, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition) to depart the United States.

The 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to a status violation, misrepresentation, or fraud. In such cases, the F-1 student is ineligible for cap-gap extension of status and the 60-day grace period. Similarly, the 60-day grace period and cap-gap extension of status does not apply to an F-1 student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, students are required to immediately leave the United States.

An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a cap-gap period if:

The student’s H-1B petition and request for change of status has been approved;
The student seeks readmission before their H-1B employment begins (normally at the beginning of the fiscal year on Oct. 1); and
The student is otherwise admissible.

However, if an F-1 student travels outside the United States while the H-1B petition and the change of status request remain pending the request for change of status will be considered abandoned.

Please note that even if an F-1 student meets all of the requirements listed above, a U.S. Customs and Border Protection (CBP) officer always makes the final determination on whether to admit an applicant for admission after inspection at a port-of-entry. F-1 students may refer to the DHS Study in the States page for a list of the documents needed to confirm eligibility for F-1 status.

F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List (PDF) , are employed by employers enrolled in and maintain good standing with E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 24-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on our Optional Practical Training Extension for STEM Students (STEM OPT) page or the STEM OPT Hub .

Students who are eligible for a cap-gap extension of post-completion OPT employment and F-1 status may apply for a STEM OPT extension during the cap-gap extension period.

However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day grace period.

The law allows you to be unemployed during your OPT period for a limited number of days.

If the student’s OPT end date is shortened to Sept. 30 even though their H-1B employment would not begin until a later date, the student should contact their DSO. The DSO may request a data fix in the Student and Exchange Visitor Information System (SEVIS) by contacting the SEVIS helpdesk.

Laid off or terminated by the H-1B employer: If the student has been approved to change their status to an H-1B nonimmigrant but is laid off/terminated by the H-1B employer before the date they officially obtain H-1B status, the student can retrieve any unused OPT if they have an unexpired EAD issued for post-completion OPT. The student will remain in F-1 status and can continue their OPT using the unexpired EAD.

The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status goes into effect. This will prevent USCIS from changing the student’s status to H-1B. Once the petition has been revoked or withdrawn, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (the notice of revocation). The DSO may then contact the SEVIS helpdesk to request a data fix in SEVIS to prevent the student from being terminated in SEVIS.

If USCIS does not receive the withdrawal request before the date that the student is supposed to change status to an H-1B nonimmigrant, then the student will need to stop working, file Form I-539, Application to Extend/Change Nonimmigrant Status, to request F-1 status, and wait until the change of status request is approved before resuming OPT employment.

The F-1 student can continue working with their approved EAD while the data fix in SEVIS is pending if:

The (former) H-1B employer withdrew the H-1B petition prior to Oct. 1
The student finds employment appropriate to their OPT;
The period of OPT is unexpired (which would indicate that the student was not actually utilizing “cap-gap” since they otherwise had valid OPT authorization); and
The DSO has requested a data fix in SEVIS.
The period of OPT is unexpired (which would indicate that the student was not actually utilizing “cap-gap” since they otherwise had valid OPT authorization);; and
The student has not otherwise violated their F-1 status.
Maintaining valid F-1 status: If the employer withdraws the H-1B petition before the date that the student officially changes to H-1B status, the student generally will remain in F-1 status while the data fix is pending. The student would have the standard 60-day grace period to depart the United States unless the H-1B petition was revoked because of fraud or violation of status.

If the employer withdraws the H-1B petition approval after the date that the student officially changes to H-1B status, the student’s status will have been changed from F-1 to H-1B. The student will no longer be in valid F-1 status and would need to file a Form I-539 if seeking to change back to F-1 status.

H1B Travel While Your I-485 Is Pending

Traveling while your I-485, Application to Register Permanent Residence or Adjust Status is pending can be tricky. Generally speaking, traveling with a pending application will directly result in an abandoned application. However, in certain cases, traveling does not affect the status of the application. As an H-1B visa status holder, there are two options for traveling: Advanced Parole or a valid H-1B visa .

In this piece, we share the difference between the two and obtain them to secure travel abroad.

What is H-1B Visa?

H-1B visa is one of the most sought-after nonimmigrant visas used by employers in the US to hire foreign workers. The visa can be used to employ workers with a bachelor’s degree or higher in a specialized occupation.

The visa gives a wide range of benefits, including the ability to live and work in the US, change employers or work for multiple employers at once. Along with this, the dependent spouses of H-1B visa holders can obtain H4 Employment Authorization and work within the US.

Further, H-1B visa holders can travel abroad and return to the US without obtaining any other documentation. However, this changes after you file an I-485 Adjustment of Status document.

What is Adjustment of Status?

If you are in the United States on a nonimmigrant visa like H-1B, you can submit Form I-485 to change your status from nonimmigrant to immigrant or status as a permanent resident. This is commonly known as the Green Card Application.

Keep in mind that obtaining a green card is a difficult process. Once the Adjustment of Status application is filed, the United States Child and Immigration Services (USCIS) will go through an extensive review process. Having an H-1B status does not guarantee a green card.

While your Adjustment of Status application is pending, you will need to take certain precautions to ensure that your application isn’t denied or abandoned. One area in which you need to exercise caution is traveling when you are in nonimmigrant status .

Traveling With a Valid Nonimmigrant Status

Generally, suppose a foreign citizen possesses a nonimmigrant visa and is applying for an adjustment of status. In that case, he or she is required to travel only if he or she has Advance Parole.

There are a few exceptions to this rule, though. As long as they have a valid visa, H-1B , L-1 , and K-3/4 visa holders do not require advance parole paperwork. The Adjustment of Status (AOS) petition is the last step in the process of acquiring a green card in the United States.

As a result, processing via the USCIS takes longer. During this vital processing period, the petitioner should avoid doing any of the following activities, which might lead the USCIS to conclude the petition has been abandoned.

In short, if you plan to go outside of the United States while your I-485 adjustment of status petition is pending, but you still have a valid H-1B visa, you can utilize the visa to return to the United States after your trip. You do not need to get any extra travel documents in this scenario. This is one of the advantages of having a valid nonimmigrant status from the start to the finish of your green card application.

Here are a few key points that you should keep in mind while traveling on an H-1B visa with a pending I-485:

Immediately respond to any request for clarification made by the USCIS
Appear for the scheduled interviews to complete the verification process
Provide all the relevant documents, including fingerprints or biometrics
Do not obtain Advanced Parole for traveling abroad

In case of failure to follow any of the above steps, the AOS application might be considered abandoned by the USCIS. In such a case, you will have to submit a fresh I-485 for adjustment of status.

What is Advance Parole?

If you do not have a valid nonimmigrant status or will not have a valid nonimmigrant status upon return to the US, you need to obtain advanced parole. Advanced Parole works as a travel document to allow nonimmigrants without valid visas to travel abroad. Keep in mind that obtaining advanced parole does not give the rights of a nonimmigrant or the ability to travel in and out of the US. Instead, it provides a one-time entry into the US>

How to Obtain an Advance Parole?

Before leaving the country, double-check that the I-131, Application for Travel Document has been properly authorized. If you don’t, your I-485 adjustment of status application will be automatically refused.

You will obtain an I-512 if your Advance Parole is accepted, which will allow you to depart and return without endangering your adjustment of status. Remember that you will still be subjected to an inspection by Customs and Border Protection. Thus, Advance Parole does not ensure that you will be allowed to return.

1#How does being on parolee status affect my H-1B job?

If you travel overseas and use advance parole to re-enter the United States, your I-94 will state that you are a “parolee.” You can only work for the employer with whom you had an H-1B petition approved before leaving the United States while in this status.

After re-entering on advance parole, you’ll need to file an H-1B modification, extension, or transfer to alter your I-94 from parolee to H-1B. If your petition is accepted, you will receive a new I-94 status indicating that you are an H-1B visa holder.

2#How can I travel without a valid nonimmigrant status?

If you do not have a valid H-1B visa, advance parole document must be obtained before going. Otherwise, you might not be permitted to return to the United States following their trip overseas.

This will also ensure that you do not have to attend a visa interview abroad. Keep in mind that it will come with certain drawbacks if you obtain advance parole. For example, if your I-485 is denied, they would lose their non-immigrant status and may lose their ability to stay in the United States.

3#Can I travel with a valid H-1B visa and pending AOS application?

It is unnecessary to get an Advance Parole to rejoin the United States if status applicants have a valid H-1B visa and a pending AOS application. In fact, if an H-1B visa holder uses Advance Parole to rejoin the United States, their H-1B status will be canceled. After that, the foreign national would be referred to as a “parolee.”

The H-1B employer allows a “parolee” to continue working. However, they will not get legitimate H-1B status until the employer has filed for an extension on their behalf and has the application accepted. This requirement, however, is only applicable if the applicant’s H-1B visa would not have expired if the applicant had not departed and returned under advance parole documents.

How Can Herman Legal Group Help?

Navigating through the rough waters of American immigration law can be very difficult and confusing. It is normal to feel anxious and stressed about the process. That is where we come in. Our team of experienced and qualified lawyers has the expertise and knowledge to help you through every step of the way.

The Herman Legal Group is a full-service immigration law firm that proudly provides quality legal services to individuals, families, and businesses throughout the United States. We specialize in all areas of immigration law, including employment-based visas, family-based visas, citizenship, green cards, and asylum. Our clients come from all walks of life and we tailor our services to fit each unique individual case.

No matter your particular immigration needs, we are here to help. If you have any further questions or concerns, please do not hesitate to contact us. We will be more than happy to assist you.

At Herman Legal Group, Your Future Matters Most Call now to request a consultation

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H1B Extensions Pending – USCIS 240 Day Rule ? Can You Work ? Denied ?

USCIS processing times for H1B visa petitions can sometimes get very long and some H1B holders may end up in situations, where they hit the 240 days mark and not sure, if they can work or not. As the H1B premium Processing is suspended until Feb 2019 , many H1B holders are in similar situations with the delays in processing times. Let’s look at the USCIS’s 240 Day rule in H1B visa’s context and share details on various scenarios regarding work options, denials, etc.

What is H1B Extension 240 Days USCIS Rule ? What’s Employers Guidance from USCIS?

H1B Extension of Stay USCIS 240 Day Rule

As per USCIS employee handbook, Employers or H1B Sponsoring Companies can file extensions for their employees on H1B Visa Status using I-129 form before their status expires. After filing H1B extensions, while USCIS is processing these petitions, the employees with pending H1B visa extension petitions are authorized to work for up to 240 days or until USCIS Denies H1B Extension petitions, whichever comes early. What it means is that, if USCIS denies your H1B extension petition earlier than 240 days mark, from the day your previous H1B petition or I-94 expired, then you need to stop working immediately and leave the country. Alternatively, if your H1B petition decision is pending with USCIS for 240 days, from the date of expiry of your previous petition or I-94, you can continue to work for up to 240 days. Below is the official reference text from employers’ handbook on USCIS website. It does not cover explicitly the “240 days from the date of expiry of authorized stay”. To get this clarified, let us look at the official regulation now.

H1B Extension Pending for more than 240 days – When does it start ? Official Regulation?

The official regulation for 240 day rule is published in federal register as 8 CFR 274a.12(b)(20) and the text says pretty much the same as above, but it explicitly highlights the when the 240 days start from. As you can see in below screenshot of the regulation, it says that a H1B holder with pending extension petition can work for up to 240 days from the date of expiration of authorized status, which is basically the expiration date of your previous H1B petition or I-94.

Also, if your extension petition is denied before 240 days, then your work authorization ends immediately upon notification of the decision and you need to stop working and leave the country. See below screenshot from the federal register : yellow highlighted one indicates working rule, green highlighted one indicates the text for start date for 240 days, red highlighted one indicates the denial rule.

USCIS Official Regulation for 240 Day Rule - Denial - Working Info

Conditions that allow H1B holders with Extensions pending to work for 240 Days ?

Below are the required conditions for H1B holders to take advantage of 240 day rule :

H1B holder has to be in valid status, while filing extension petition.
Employer/ H1B Sponsor has to file H1B Extension petition on time, before the expiration of the current status…Also, USCIS has to receive the same on time before expiration of status.
H1B holder continues to work for the same H1B Employer, who has filed extension.

H1B Extension Pending beyond or after 240 days – Can you Stay in USA?

If your H1B visa extension petition is pending with USCIS for more than 240 days, you cannot work as per regulation after 240 days from expiration of your I-94, but you can stay in the country, USA, waiting for decision until USCIS makes a decision on your petition and your stay after 240-day mark is considered as authorized stay.

H1B Extension Denied After 240 Days ? Am I in Unlawful Presence ?

If your H1B petition gets denied after 240 days, essentially your period of authorized stay ends on the day your denial decision was done and you are notified by USCIS on the same. You are essentially out of status and will accrue unlawful presence from the day of your denial. Your unlawful presence does not date back to your entire stay and only starts from the day of your denial decision from USCIS and will accrue from that day. So, you need to depart US immediately after your denial decision is notified to you.

Does 240 Day Rule Apply to H1B Transfer ? Can you work beyond 240 days ?

No, the 240 day rule does not apply to H1B Transfers. It is only applicable to H1B extensions filed with same employer. If your H1B transfer petition was filed on time (before expiration of I-94) and is pending beyond 240 days, you can continue to work even after 240 days, as the 240 days H1B rule is not applicable in this context. You are considered to be in period of authorized stay, meaning you are not accruing any unlawful presence. If your H1B gets denied anytime after 240 days or before 240 days, your work authorization ends on that day and you need to stop working and leave the country.

What can you do to avoid 240 Day Rule complications ? Apply early, Submit USCIS Inquiries

It is recommended to file for H1B Extensions much ahead of time. You can apply for H1B visa extensions 6 months before expiration , so plan ahead and apply.
Employers can submit an inquiry with USCIS, if their petition is pending for 210 days or more. They can call USCIS contact center and provide details of the original receipt notice and indicate that the case has been pending for over 210 days to get USCIS to work on the same. Here is the official USCIS alert for 210 days inquiry

Yes, it applies to anyone using the form I-129 such as L1

The 240 days starts from the day your authorized period of stay expires, which is nothing but end of your I-94 date or approval date on your approved petition.

In general, 240 day rule applies to pure extensions. With Amendments added as part of your extension, you maybe eligible to continue working even after 240 days. So check with your attorney.

All the visas types that can leverage 240 day rule are : H1B, H1B1, H2A, H2B, H3, L1, O1, O2, P1, P2, P3, R1, TN, A3, E1, E2, E3, G5, CW1 and I.

No, the 240 days rule does not apply for any transfer petitions filed.

Every H1B case is different and there can be complications with continuous changes in visa rules, it is recommended that you discuss with your attorney on your situation, when you are dealing with 240 day rule.

What has been your experience with 240 Day H1B rule ?

Reference s: USCIS Employers Hand Book H1B extensions , H1B Extension 240 day rule – Regulation.gov

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162 comments.

I have filed extension on may 2022 at this time my I-94 going to expire on June 16th 2022 and later after 3 months I have changed client so I have applied for Amendment in premium processing it got approved for 3 year and this time I was on receipt number. and now the first extension got denied on April 26th 2023. in this scenario I didn’t switch employers. now what is the my status.

H1B extension is filed before I-94 expiry, but did not get the receipt number from USCIS in mail. Can I still stay in the US after I94 expiry while I am waiting for USCIS to generate and mail the receipt number to me?

Gautham, Technically yes as you filed it before I-94 expiration. There are delays with receipt notice generation. As long as the application was accepted, you should be fine. Having said that, check with your attorney on this and take the call.

Can a person apply for h1b transfer while in 240 days period.

My H1b visa expired recently and I am in 240 days period now.

But client without knowing that offerrend me a job, can I accept his offer or reject because of my 240 day period

Rajesh, The trick is to have a valid I-94 to apply as that’s the way to say you are in valid status. If not, it will not work. So, if you are in 240 days period it might not work.

My H1B extension filled and I got terminated from employment, what will happen in this case?

Thanks, Murali

murali, Well, this is slightly tricky. If you still have H1B valid with I-94, you have about 60 days grace period. Check H1B Grace Period and FAQs . If your I-94 expired, then it is tricky, check with an attorney.

Hi! Thanks for this article. Question: Does the 240-Day rule also apply beyond 6 yrs? I.e. Can one stay beyond 6 years if extension request (to capture travel time) is pending? PERM is under processing.

I am in the same situation now. Kumar, can you please provide your reply to this question.

SG, did you get any guidance on this query from any lawyer? can you reply to this please.

Did you find out whether 240 days rule applies after the 6 years cap?

Thanks for writing this article.

My question is:

Can we file i129 online? If the i194 is expiring, Will USCIS update the i94, the day they receive the application OR when they generate the case number?

Shivam, No. you need to submit it physically. Your employer would do it. You would get it with approval, if you filed it on time before expiry.

Hi Kumar, when will the 240 days period begin. The day USCIS receive the application?

Consider the scenario that i94 is expiring the next day USCIS receives the application. Will they give buffer i94(240) days the day they receive the application?

Shivam, As long as you send it on time, they may consider it. Technically, you are supposed to file it before it expires, that’s the key.

Shivam, Read above article, it starts after your I-94 expires and your petition ends.

Hi Kumar, My H1B I-94 is expiring on 17Jan2021 and my employer filed for 3 year extension on 26Dec2020.

Will I be able to travel to India and still work and get paid by employer while we wait for approval? Thanks..

Ashish, There is nothing stopping you from working in India as you do not need H1B for that in India. You can travel, but cannot get stamping done until you get your new approval and also there are very limited visa slots as consualtes are not open for regular operations. Consider all these before you travel.

I had filed for h1 b extension on 24 Jan. I got an Rfe and we responded back by May 8. Since then my case has been stuck:

1. Does my 240 days start from Jan 24 or it resets when I filed my RFE on May 8?

2. If my visa get rejected, before my 240 days are over, can I file for an H4 application?

3. If my visa get rejected, and my 240 days are still left, how long can i stay in usa before I start acrruing unlawful presence? Worried flights might not be working.

Any help on this will be highly appreciated.

Jayesh, It starts since your I-94 expired. Read above article again, it is clarified.

I entered the US in January. My I-94 with company A expired in March while my H1B was being transferred to company B. The application is approved.

Do I need to submit anything to amend my I-94 online?

Sydney, You should have got I-94 extended with the approval. Check your approval notice. If not, then you need to get I-94 updated. You need to have valid I-94 at all times.

Thanks for your reply.

I received the extended I-94 with new dates until 2023. However, on the I-94 website, it indicates I’m admitted to April 2020. Should I submit something online to correct that?

Sydney, No need. The I-94 updated that comes from USCIS will not be verifiable online. Only CBP related I-94 info can be checked online.

My case was outside regular processing time. My employer raised an SR for the same and I received below reply from USCIS :

“Your application is still pending consideration. We regret that we are not able to give you a timeframe for when we will complete the review of your application”

Is this related to additional review? can someone explain what this means?

Appreciate your help!

Ravi, It is probably a general message. It may or may not be…Check with your attorney.

Hi Prasanna, I too received the same update today – “Premium Processing Fee Will Be Refunded” after RFE went to additional review in Nebraska. I dont have the benefit to see any email on this.. Have to wait and watch for the decision.

My extension petition got approved today . Not sure why it took so long.

My case got approved today.

My h1b visa is expiring in july and my extension is in process. can a new employer transfer my visa before my i94 expires while the extension is in process. Is it a bridge case scenario after my i94 expires?

Rajesh, As your I-94 has not expired, it will not be counted as bridge. If you join other company before I-94 expiry, you dont need to worry about extension.

Thanks for the reply Kumar. Will it be a brigde case if I join the other company after i94 expiry?

rajesh, If they file it after I-94 expiry, then yes.

My I94 was expired on Oct 10 2019. And My Amendment+extension is pending now. 240 day rule applicable for my case ? Please advise..

Ram, It is technically an Amendment not an extension…Discuss with your attorney on this.

can an employer pay salary to its employees after 240 days is expired?

My employer is currently paying us stipend (almost equal to salary) to support us, even after our 240 days of work authorisation is expired,while we still wait to get result on petitions from USCIS.

Will it cause any problems while going for visa stamping in future. please advise

Ravi, I am not sure. Talk to an attorney on this. Also, do update here for community benefit.

I have applied amendment + extension on Feb 26th 2020 with premium mode to Nebraska Service Center. I got RFE on Feb28th. We have responded RFE on Apr20th. I didn’t hear back by May 5th ( 15 calendar days ).

Attorney contacted the premium contact center and we got response as “The file you have inquired about is undergoing additional review. Since the adjudication of this file has gone beyond the 15 calendar days, a refund will be processed after adjudication has been completed”.

My question is what might be the additional review?

Venkat, I wish, we knew…it could be anything like verifying some additional info regarding you or your petition…hard to know…

Hey Venkat, it is the exact same situation with me. You can search with my name ‘Prasanna’ for more details. Looking at your case it feels like USCIS is responding in that way just to buy some time instead of directly conveying that premium processing has been suspended if the case is upgraded to premium prior to 5th March and still pending.

Hey Venkat, Please post the update on your case here. Let us know when decision is known on your case. I’m surprised if it is the problem with Nebraska center or with our cases. One of my friend whose RFE documents have been submitted to Texas center on May 18, 2020 and he got his case approved on May 29, 2020 i.e., within 10 days. This raises a flag in my mind. So, please post the update on your case here.

Hi Venkat, Did you receive any decision. I am exactly on the same boat..

Hi Kumar, I would like to seek your advise. I am currently on L1-B visa with I-94 expiring this Sep 2020. I am also studying my Masters and plan to finish this fall 2020. I already applied for extension to USCIS but give the delays in processing, I might use up 240 days grace period to continue working in US. My concern is does this mean I can still continue to study within 240 days grace period? Thank you!

RL, Your 240 days start from Sep 2020, so you should be fine to study while you wait for L1 extension. Your fall semester ends in December, which would be less than 240 days. Discuss with your DSO as well on this once.

Hi Kumar, really appreciate your quick response. We value the reliable advise and help you provide, most especially these uncertain times of Covid. Stay well and healthy.

RL, Cheers !

Hi Kumar, My H1B expires on June 15th 2020. My employer is yet to file an extension. I’ve got an offer from another company this month and I accepted the offer but the start date is not decided yet. Due to the suspension of premium processing, the chances of a quick decision from USCIS for transfer approval are slim. Is it possible to apply for transfer during the 240 day period after my existing employer applies for extension? Thank you

NewYorker, Well, when you apply during that period, you will NOT have valid status and it get tricky as you will be in Bridge Situation, where you need your current employer’s approval. So, not recommended.

Thanks for the quick reply Kumar. My new employer applied for extension last week. Is it ok to ask the company to apply for H1B transfer and extension? Will it be a bridge situation in this scenario? I’m really confused.

NewYorker, You cannot file Transfer and Extension by same company. Extension is used for existing companies to file for continuation of employment on h1B for their current employee, unlike Transfer is used by new company to have a new person join their company on h1B.

Hello Kumar,

In this Bridge Situation, does it work like my existing extension should approve first after that they initiate H1B transfer to new employer?

Sathya, In short, the company that applied your H1B first as a transfer acts as the bridge and it needs to be approved to be safe. Extensions are kind of similar as when you apply, you need to have valid approval. When you apply as pending, it has to be approved similar to bridge. Again, discuss with attorney and take the call.

I had applied for H1B extension via normal processing in September and still did not receive any decision from USCIS. Yesterday 240 days passed since my I-94 expiry. 1. Since I cannot work, I am on vacation. Employer will not pay me for this vacation period. Is this okay, or I have to be considered resigned/terminated and re-join after I receive approval? 2. What are the options I can utilize to avoid leaving the country in case of denial? Like convert to H4 etc?

Pradeep, 1. You cannot work for sure. I am not sure, how they would maintain I-9 compliance. Check with attorney on this…do update here on their update. 2. Now, it is too late as your I-94 has expired, you do not have any options other than leaving the country.

Hi, I have completed 240 days of I94 validity on 1-May-2020. My H1B extension was applied on 24-June-2019 to Nebraska center and did not hear back anything even until 6months. That’s when we actually upgrated to premium processing in 5-March-2020 up on which we received an RFE with in couple of days. on 20-Apr-2020, all the required documents have been received to USCIS and the result is not yet know. As per the timelines of premium processing, by 5-May-2020 i should hear back something. In this regard and also with the latest news on 60day grace period, am i allowed to work though 240days crossed.

Please suggest.

Prasanna, No, there is no new provision. You cannot work after 240 days, so far USCIS has not given anything.

Thanks Kumar…!!!!

We have crossed premium processing timelines and have not yet received any kind of response on my RFE documents submitted, neither received any amount refund. What should be the proposed action that we need to adopt now.

Any suggestions..?

Prasanna, I would suggest, you ask your attorney to follow up with USCIS and see the reason for delay. At the least, you will get the premium processing fee refund.

Hey Kumar, You are correct….below is the response received from USCIS

“The file you have inquired about is undergoing additional review. Since the adjudication of this file has gone beyond the 15 calendar days, a refund will be processed after adjudication has been completed.”

Prasanna Marreddy, Good. At least, it is a concession for the delay. Do you see it on the USCIS status site or it was an email response ?

Hey Kumar, i’m not able to reply to your latest response, but yeah, to answer that, the response from USCIS was just an email response for the inquiry raised to the premium processing department. Nothing is updated in USCIS status website.

Prasanna, Got it. Thx

Having known my situation, am i eligible to work under India payroll without having valid US visa, as i have Indian passport, PAN etc. Can i be paid in Indian rupees. Even if i go to India, i will have to work from India. So, why cannot i do the same work from here in the current situation. Please suggest.

Prasanna, No, your physical location, where you now work is what matters. That’s how the rules and logic does not work here…probaly, when the rules were made, there was no work from home or remote option available…so, that’s the issue…

Thanks Kumar…!!! So, only option left is just to wait until the decision known.

Prasanna, Yes, unfortunately, that’s the only thing you can do.

Hey Kumar, My case status got updated as ‘Premium Processing Fee Will Be Refunded’ online. But i received a email which says ‘Your Case Status: Acceptance’ and below is the part of the email content and what does this mean exactly…?

“During the acceptance step USCIS reviews newly received applications and petitions to ensure that they are properly filed (i.e. signed by the applicant, appropriate fees, etc.) USCIS issues a receipt number for the application or petition, and sends a receipt notice to the applicant or petitioner. Applications and petitions that are not properly filed are rejected with an explanation of why the application is rejected and the corrective action needed. Rejected applications or petitions do not retain their filing date. The acceptance step is typically completed within 2 business days of when the application is received. With mail time it may take several weeks for you to get the receipt or rejection notice in the mail. If you do not receive your notice within 30 days of mailing your application, please contact our national customer service center at 1-800-375-5283.”

Prasanna, USCIS will refund the money, if they miss the 15 day deadline, but will still process in premium processing. That’s the standard practice.

Ok, They still follow premium processing timelines. That’s a good news.

HI Kumar and Bala,

My case got Approved today…!!!!

Hello Kumar, Thanks for helping us out. I have a question regarding mt H1b transfer. I was recently laid off from company A but luckily got an offer from company B within 60 days. Company B initiated my H1b transfer and I have joined them on receipt notice.

My I94 is valid till 20 Sept. What happens if previous company revoked my H1b and my current H1b gets rejected? Can I stay in the country till 20 Sept? If not should I ask my previous company not to revoke my H1B?

Puru, Well, then you need to leave the country. No, you cannot. If they can keep it dormant, they may…This is tricky and you need to discuss with employer and their attorney…

My current I 797 expires on April 30th 2020 and I 94 expires on May 10 2020 , i applied for extension in Jan 2020 and received denial before 10 days. Can i continue to work in US after April 30th 2020 ? as my I94 is still valid.

If attorney files extension again by May 10th , can i continue to work for 240 days or until a decision is made

Apply for extension before your i94 expires so you will get receipt On that receipt you can continue for 240 days Do the above thing and start looking to transfer your H1b to new company with new project which makes your extension easier Mostly you will get denial again if you apply on same project with same employer. So better look for new project after you apply for extension before your i94 expire currently where ever you are working

Rohith, Yes, you can as long as the denial was for Extension. Yes, your employer should file it soon and can work up to 240 days or a decision is made.

My 240 days will expire in May. As 240 days applies only on extension petition, can my employer file another amendment petition while my i-94 has already been expired but I am within 240 days of Authorized Work Status post i-94 expiration with timely filled extension. This will be a great help if you can put some light on this. Will filling amendment petition will keep my work authorization valid beyond 240 days which ends in May.

Venu, This is very much a tricky situation and grey area…You are going to be in something called Bridge situation as your I-94 expired. Please talk to attorney.

I am under same situation did u find any solution, does filing h1b extension and amendment allow me to work after 250 days expiry?.

I live in windsor ontario and work in Detroit. I have applied my extension which is expiring on May 1 2020. As of now we cant go to work and we all are working from home. So, can i work after my h1 expiry date ? Does 240 day rule apply in my situation ? As im outside US and can’t travel now with this covid situation. I know we can work for 240days if we stay in USA. Please advise as its a tricky situation. Thanks

Harsha, If you are not living in US and not entering US soil, then it does not matter as you are not really under US employment laws. You need to think about tax implications in Canada and if you have authorization there… Discuss with your attorney as well and plan out.

Thanks for the reply. So, i stay in canada on PR status. So, if i work from outside US it doesn’t impact any US H1b laws right? All I’m concerned is it doesn’t impact any H1b laws in US. Please advise.

Harsha, Legally, if you are not in the country, it does not matter. Your employer has to do I-9 compliance, if you work in US. If you work outside of US, they will not maintain it. Talk to your HR and Immigration and sort it out.

At present we have situation with this president EO coming through. In my present situation what you say is it ok to stay until i get approval (i live in canada) or do you suggest me to go US and wait for approval ? May 1st my i-94 expires. Please suggest.

Harsha, No one knows. If Trump blocks something, then you would be in trouble. I suggest you talk to your attorney and then make an informed decision.

Hi Kumar, I stay in canada(as permanent resident)and work in US on H1b as a daily commute(daily will cross the border). I have got approved H1b extension without i94(as I’m out of country in canada). As of now I can’t go to USA or get stamped at consulate with new EO. So, 1. Can I still work and my employer can run pay check in US? 2. If my employer run’s pay check will it affect my future filling or GC process?

Harsha, 1. It is up to your company, some do it for short time. But, after sometime, they do not as it is a taxation issue. 2. Well, I am not sure how it would impact. You are not working on H1B as you are not in US…so, it is more of Canada tax issue. Discuss with your attorney as well and then take a call.

My Current H1B extension to RFE response got denied and i94 already got expired. However I have a H1B transfer approved with other employer. Can I join to the other employer and what all things i need to take consider for joining another employer with the i797 approval notice for the employer. Please suggest.

bikash dash, Well, it is slightly grey area as your I-94 is expired as you do not have legal status to move to other company. Talk to your attorney and see, if there is another way. Quick fix would be to get out of the country, get stamping done and re-enter…but, with COVID now, not sure how this would work…

Thank you for reply.

So, if I work from canada(home) Its a more a taxation issue than an immigration issue right?

I pay both the taxes even before all this started. As a resident for a canada and working non resident in USA.

My concern was only running a pay check and its impact on immigration, if its a tax issue then i will reach out to CPA. Please advice.

Harsha, Yes, that’s correct. Logically you are not in US, it does not matter to you as individual, you are not violating anything. It is problem for them to maintain your I-9 compliance. Also, ask the company immigration attorney and clarify it. Do update here for everyone benefit.

H1 B maxing out (counted all days outside US) on May 2020, perm applied in Jan 2020 but not approved. Can we still file for extension of H1 B status or it has to be a change of status considering H1B maxing out?

Rakesh, You should only count all days spent in US for max out period. You may try to file, but if questioned that you maxed out, then you need to provide explanation. Talk to your attorney. Usually PERM should have started one year before to avail the benefit.

Sure, thank you so much. Will update once I get information from my employer attorney.

Hello, Assuming visa extension is pending beyond 240 days and we stop working for the client but then stay in the country waiting for approval. Will it be a loss of pay during this period as per USCIS or it depends on the actual employer? any information on this will be helpful. thanks

Vin, You need to stop working…that’s all it says. I suggest you talk to your attorney on this.

Thanks for the info about the 240-day rule. I’m an assistant prof. at a college here in Calif. My current H-1B period of validity ends on May 18, 2020 (the validity started on August 15, 2019). My school has already offered me a new faculty contract for the next school year in the same teaching position starting August 10, 2020 (they only offer 9-month school-year contract here). They’ve assured me their immigration lawyers will file the H-1B extension application before May 18th. During the summer break, I’m currently not obligated to work for them although I’m still being paid (my paychecks are spread over a 12-month period). Will my extension still be approved based on the 240 day rule given that during the summer I won’t be working for them, not even doing research or teach one class.

The third condition you stated for the 240-day rule is “H1B holder continues to work for the same H1B Employer, who has filed extension.” Does this mean the rule only is applicable if you continue working during the summer? In my case, I’m expected to continue to work for the same H-1B Employer in August but on the other hand, I won’t be actually working in the summer although I’ll continue to be paid. I’m in a bit of a dilemma about this. Would it be better to have a summer contract to fill this gap to ensure the extension will be approved? Or is that not necessary?

Sanjay, The 240 days rule is for someone waiting for H1B approval, when it is pending. What it means is that, if you apply for extension and do not hear back for a long time from USCIS, then you should stop working at 240 days mark…. Now, your situation is different. I am not sure, how your first H1B worked. In general, the rule of thumb is you need to be maintaining status on H1B. Now, it does not just mean getting paid…as long as the roles and responsibilities are met and you are functioning according to that, you should be fine. I suggest you talk to an attorney and clarify on this.

I have a question regarding the calculation of 240 days grace period during H1B extension. Is this 240 days count starts after visa expiry date (or) I-94 expiry date ?

For this scenario, please suggest when the 240 days count might have started? My i94 expired on 31st August 2019 and we had applied extension and got visa till February 2020. i94 isn’t updated as we didn’t travelled outside of the US. Now we have again applied for extension and it’s in progress.

Nidhi, Read the article, it has the info in FAQs When you got visa approved till Feb 2020, did you get I-94 along with it ? if so, your 240 days start from that end date in I-94 in new slip. talk to your attorney…

Hi Kumar, Applied H1B1 extension on Nov,14-2020. when I can I do “outside normal processing time” service request online?

Thanks, Venu

Venu, You can check USCIS processing times web page, it will indicate the times.

KP If L1B extension approved but I need to travel outside of US for family reasons. Does that require new visa process or it’s just stamp directly can be obtained

KPatil, You need to get stamping done to re-enter, if your L1B visa stamp on passport has expired. If it is valid, you can use that and the extension and re-enter back.

Thanks Kumar for prompt reply. My visa is already expired. I was more looking for; is that a fresh visa interview process from India where there might be uncertainty again of rejection ? Trying to check if travel in extended period can create any issues to come back.

KPatil, You need new stamping. Your travel does not have impact on stamping, all they care is documents and your fit for the role, don’t worry.

My previous H1B visa expired in September 7, 2019. Extension was filed in July. I got an RFE in Feb 2020 and RFE response will be filed this week. The plan was to file this in premium but alas, due to COVID situation USCIS suspended all premium processing, RFE response will have to be filed in regular. My 240 days since visa expiry is on May 4th. Owing to this special COVID situation, will there be any relaxation that will be made on my case which will let me continue work in US

Vish, They have not announced yet. Discuss with your attorney on your options.

I am also in same boat no my 240 days wil be over by MAy end 2020 not sure what to do

Deepa, For now, the rule is you need to stop working. Discuss with your attorney. Hope USCIS gives some new guidance.

Hi Vish, Did you check with your attorney. Am also in the same boat. My 240 days end in May. I tried to check with my employer. but no specific answer as having two months of time.

Please let me know if you find any alternate options. Even we are in the same situation.

Please let me know I am also under boat 240 days will expire on june 30th. Looking for options.

Kumar, could you tell me when 240 rule will start. I am in very position I applied i94 ext in Aug 2019 but my i94 exp in dec 19. Does 240 day rule starts from Jan 1 2020?

Jag, It starts from I-94 expiry date. If your I-94 was extended until Jan 1st, then it starts from that day, but if it was not extended, then it starts from Aug 2019.

I got bit confused with your response.

My i94 approved till 31st dec 2019

But I started applied extension for future dates from Jan 1 2020.

My question is does 240 day rule starts from Jan 1 2020 correct ?

Jag, I re-read it, I missed the part that it was extended till Dec 19. In any case, it starts from Jan 1st, as that’s when your I-94 expired.

Please help, I have a complicated situation: Q: As per i797 my visa date was 20nd Nov19, i have submitted extension on 10th Nov19(Regular). So I am staying on 240 days rule. I got RFE on 11thMarch20 for extension. Response for RFE is yet to be filed. Q. if my employer fire me now and does not submit my RFE response, then what can I do? Can I stay in USA? Q. If my employer fires me but accepts to submit my RFE response, then Can I stay without Job till i get my Approval/Denial on my H1B Extension? Q. OR should i immediately travel to India as and when fired by Employer, as i don’t have valid Visa? Is my H1B still valid even If i (my Employer) don’t submit RFE response? Q. Can other employer transfer my H1B if current employer fires me (In this 240 days rule)? and can new employer submit my RFE response?

Kumar, No, you cannot stay, you need to leave, if they do not respond. Well, you are in something called period of authorized stay, you need to maintain status until you hit that 240 days. Discuss with your attorney and take action accordingly as it can be complicated. As your I-94 is expired, you would be in something called as bridge situation, where you would need the middle company H1B to be approved…

please help me on this

my amendment RFE got denied(location : Seattle client:ABCD) 12th FEB-2020, but my I-94 & original petition(location : Austin Texas client -WXYZ) is valid till AUG11th -2020.

(earlier project location no work now, as it was a maintenance project I cannot go back to Austin now)

now my question is

1.as my RFE got denied (I am yet to receive mail on decision notice) how long I can stay in US ?

2.I can reapply the amendment for the same location and same client ? i.e. (location : Seattle client:ABCD)

3.is there any out of status problem ? how long I can stay in US ? let me know

Thanks in advance.

1. You can stay until you get the actual paper notice and then plan. 2. You may do that. 3. You are not technically not out of status yet, only your Amendment is denied. Your old one is technically valid, just that your project is over. You need to Discuss with your attorney on the options.

Could you please delete this message, it is showing my email address. Thanks for your help

removed email.

My h1b expires on 31st dec 2019 and i94 expires on jan 10th 2020. I have applied for h1b extension and got denial on dec 19th. My employer said he can refile the new petition again before i94 expires. I have below questions now 1) I have to apply before 31st dec or before jan 10th? 2) After re apply if I get a denial again then can I still apply again and stay for 180 days or 240 days and work? 3) My employer is saying that after i94 expiry we can still apply in regular processing and you can stay till 180 days. if before i94 we apply he said I can stay for 240 days ? is it ture?

4) On the other hand my future wife is a green card holder in usa. Can I be her dependent ? what are the options while my h1b file in progres??

My current i94 and VISA expires in Jan 2020. My employer filed the H1 extension (2nd for the last term before maxing out) on 12th Nov 2019 in Premium processing. On 20th Nov 2019, I received an RFE and the deadline for the RFE response is Feb 20 2019.

My Question is: a. if the immigration team does not file the response before 20th jan 2020, does that put me under the 240 day rule? b. if the RFE response is filed and the extension gets denied (hopefully not), can we file another request petition? c. if the RFE response is filed and the extension gets denied (hopefully not), do I have to leave the country? If yes, how much time does it give me?

Abhishek, a. Technically yes. b. That is possible only, if your I-94 is valid. c. Yes, you need to… Once your I-94 expires, you are in difficult situation and will be forced to leave. So, make plans to find an alternate employer and get H1B approved with them or ask your team to act fast and get the decision soon.

Hi my perm is in progress. My current employer h1b transfer was approved it’s valid until Dec 6 2019.which is 6 year end period for me. Now if my perm is approved and 140 also is approved before December and my employer file a extension of h1b based on approved 140 and if that is pending decision can I stay after Dec 6 2019 which is 6 year end period for my h1b? Does the same 240 day rule apply in my case?

My non cap H1b will expire in December. I requested a h1b extension but realized it becomes change of employer. The same company I work now but the name and tax ID changed. I don’t know what happened to the company. How much the chance my case will be denied? Should I look for another job as soon as possible? My i140 was approved last year. If 485 becomes current during the waiting period of h1b transfer approval, will I have to refile I140?

I’ve similar question.

1) I joined company A on Nov 18, 2015 and they filed H1-B transfer. My H1-B from previous employer had I-94 valid till Sept, 2017. 2) H1-B from company had no result from USCIS till July 2016. 3) I applied H1-B from company -B on July 11th, 2016 and started working for them from July 12th. H1-B was approved on July 21st, 2016. 4) When company-B filed my H1-B, my H1-B petition from company-A was pending for 238 days. but I started to work for company-B on July 12,2016 i.e. 238 days of petition pending from company-A.

My question is, did I overstayed or I was within the rule?

Please help me understand.

What happend to the company A Petition ?

Company A’s petition was rejected.

Rejection came sometime in the month of August 2016.

You were in period of authorised stay. Read Period of Authorized Stay vs Out of Status . It is slightly tricky here as you were in Bridge situation with Company A petition acted as Bridge….technically, the bridge petition should also be approved, to have B’s approval…I would suggest you check with your attorney at B once to make sure all is good.

Thanks for the clarification. I’m going to go with the truth and state the same in the form DS160. Honesty is the best policy.

When I say “state the same” means I will state I was out of status because I’m not sure about it. Let them decide. 🙂

No, you should not say that as it is grey area. You just say that it was applied when the other was pending and then let them decide…

I almost reach 240 days after file the extension. They request REF. My question is, just in case, they will denied the case. Do I need to leave the country on the same day I receive the paper notification? Or I still have 10 days notification to take care of things? Thank you very much for the help. Or do I need to leave the country once they denied from website, not even wait I receive the paper notification. I really appreciate your help.

You should try to leave immediately to avoid issues. Online status is not reliable at times, you should wait for the paper notice, and then confirm and leave. There is no grace period as such, unless you have a reason to stay for 10 days, you should not delay…you should plan to leave at the earliest…Talk to your attorney and plan.

Thank you so much for the information. I really appreciate it. I need to take care my car and house if I do get a denied. Does that count as the “reason” I need to stay and take care of things? Thank you very much for your help.

Well, it may be, if you are planning to pack up and leave. Talk to your attorney on this and then take a decision.

my i94 expired on Aug 31th, My current employer A had filed extension with amendment before the expiry somewhere around Aug 27th(USCIC acknowledgment day). Meanwhile I also got a new employer B, who initiated transfer in USCIS on Aug 30th (ack day). 1) I am joining Employer B, what will happen to Extension with amendment petition which has been filed in premium?. 2) Can it live, if my employer A wish to get the result for extension? 3) If extension gets approved, then can I return back to Employer A, if transfer gets denied?

1. If they plan to pursue it, they would leave it like that. They can also withdraw their application, it is up to them. It does not impact you. 2. Yes, it can if they want to pursue it. 3. Well, this can be slightly tricky as you were in period of authorized stay and technically not in lawful status , you maybe able to go back before the denial, but from the day of denial you are not in period of authorized stay, so it is grey area and tricky…You should talk to your attorney at A or B and then make an informed decision.

Thanks Kumar, your answer number 3 really got me thinking.. but so far, this has helped a lot !! Guess what I have received RFE from Employer B, and all the possibilities are narrowing down to what I already speculated in my questions. It has become wait and watch game now.. Thankfully Employer B has not /will not revoke the extension petition.

My experience with visa stamping

It is better to be honest with your answers in for DS160. State all the answer truthfully. I mentioned about out of status in my for DS 160 and VO simply asked what happened and I gave the answer honestly and my visa was approved without any further question.

So my take is mentioned everything with true intention and you won’t see any issue with your visa stamping. If you falsify any of the answers then there are more chances of your visa getting rejected. Don’t hide, simply mention whatever is correct.

Agree, you should never hide information in Visa application, state the facts.

240 days grace period ending on 5th April, 2019. Employer got approval notice email recently on 28th March, 2019 as case was filed in premium processing.

Quick Question: Can I work after 5th April based on email approval notice or I need to wait for hard copy notice and cannot work till then?

I want to know my current status I am here in USA on H1B Visa, Company A is holding my H1b visa and was working with Client A. on August 2018 my H1B and my I-94 is expired. Company A applied for H1B extension in normal process before my I-94 is expired. I worked for Client A on receipt until December 2018 when my extension is in progress, i transferred my H1B to Company B and started working to Client B again Company B applied in normal process in January 2019. working with Client B on receipt. After getting receipt from the Company B for the H1B transfer, Company A withdrawn my H1B extension. what is my present situation, how long i can stay in USA and work in this situation ? What all scenarios ? how about 240 days rule ? is 240 day rule starts again for the new receipt ? Please answer me for these question

my email : [email protected]

This is Prakash and my 240 days are ending on 27th March 2019. I received RFE on 15th March and i am yet to submit response to RFE. Please note that my case is upgraded to Premium and then i got RFE.

Now, My question is: Can i stay in US without working beyond 240 days and wait till I send RFE response and wait for approval or denial?

Thanks in advance for your response.

You cannot work, but can stay. Read above article, it has a question on the same.

My H1-B max-out date is approaching. I have an approved I-140 and my H1-B extension is filed, but I may not get the H1-B extension approval before max-out date. Will 240 day rule apply to me as well ?

This is what CTS circulated among its employees today

“Due to the lengthy government delays, associates waiting for a decision beyond 240 days on an H-1B Extension that includes an Amendment for change in client, project and/or worksite location only,may continue working while waiting for a decision on the pending petition.

You may resume work and return to payroll effective Dec 26, 2018.”

Is there any change in policy ?

Thank so much for your post. Could you please help me with my case. My amendment was approved in 2017 including my work and home address. I have filed H1B extension in April 2018 and it RFE right now. My 240 days are getting over by Jan 23rd. I was thinking I should working from 241th day till I get my decision from USCIS. All of a sudden came back and told me that I am legally allowed to continue working after 240 days as well. They said that my petition is filed along with amendment. So 240 day rule will not be applicable for me.

My question is, is it possible to apply my extension with amendment when there is no change in project/client/home address after my approved amendment in 2017.

Looking forward for your response. Thank you.

Hello Balaji,

Could you please let me know if you have received any response about your question? If yes, please let me know what was that. I am in the same situation. Looking forward for your response.

Hi, Please advice if 240 Day rule applies to H4 as well? Or, they can stay in US beyond 240 days as they are not working.

My H1B (along with H4) was approved till 4th June 2018. After this extension, I went to India and while come back to US, me and my spouse got new I94 (at POE) till September 2018. But my son got I94 till 4th June 2018 only (at Same POE). We have filed the extension (H1+H4) and pending with USCIS. So, my son’s 240 days will be expired in the first week of February 2019, so, it is possible he can stay beyond 240 days? Please advice.

Thanks for the help.

Can you change your employers while on 240 day period provided you move to a new employer only when the petition is approved?

Nice post, thanks for posting screenshots of rules, very thoughtful. I have further questions, 1. If someone stays beyond 240 days, can they get driver license extended ? Especially in states like NJ where DLN is extended based on visa dates. 2. After 240 days crosses , is it possible to move to H4 (get stamped out of the country) while waiting for H1 approval. If yes, when the the extension is approved how does H4 to H1 processed ? , do they have to go out of county again ? 3. Assuming Yes for # 2 again, can a different or same employer files for new H1 ? is it possible to work on the receipt notice or approval is needed to start working on new H1?

Hello Kumar, Thanks for the post !! I have below 2 follow up questions on the same though and would appreciate your response on the same: 1. Does the same rule applies for L1B extensions also ? 2. You said, “After 240 days you can not work but can stay in USA” , does that means you can continue employment with employer without doing any work ? If yes then can he pay the salary to the employee even if he is not working ?

1. Yes, anyone who files I-129 form. Check the first screenshot it says L-1. 2. No, you cannot work for them after 240 days. They cannot pay you salary as well.

Excellent post. Good information. Again Thanks for your time and inputs

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USCIS Revises Policy on Travel While AP is Pending

The policy regarding overseas travel, while an I-131 application for advance parole (AP) is pending, has been updated by the U.S. Citizenship and Immigration Services (USCIS). Effective immediately, the USCIS will not deny a pending I-131 renewal based on overseas travel by the applicant, as long as that individual has an unexpired AP document that remains valid through her/his return date to the United States. However, if a person with a pending I-131 application leaves the U.S. without a valid AP document, or if the AP document expires during the trip abroad, the pending I-131 will be denied.

Historically, Policy for Travel with Pending I-485 also Applied to Travel with Pending I-131

Generally, if an applicant for adjustment of status (form I-485) departs the U.S. while the application is still pending, the I-485 is considered abandoned and is denied. However, if the I-485 applicant is in valid L-1, L-2, H1B, H-4, K-3, K-4, or V nonimmigrant status, and remains eligible for that status upon returning to the U.S., the I-485 application is not considered to be abandoned. Similarly, if an I-485 applicant is issued an AP document prior to departing the U.S., which remains valid through the date the applicant returns from the overseas trip, the I-485 generally will not be impacted.

If an I-131 applicant travels based on a qualifying status (e.g., H1B, L-1) or an unexpired AP document, such travel typically will not impact the pending I-131. This abruptly changed in 2017, when the USCIS implemented a blanket policy of denying pending I-131 applications based on overseas travel. This generally did not impact any corresponding pending I-485, but did inconvenience many stakeholders unnecessarily.

Travel While I-485 and I-131 Pending

Ordinarily, if an applicant for adjustment of status (form I-485) departs the United States while the application is still pending, the I-485 is considered abandoned and therefore is denied. However, overseas travel typically will not cause the USCIS to deny a pending I-485 application if the applicant obtains a valid, unexpired AP document prior departing the U.S. Similarly, if the AOS applicant is in lawful L-1, L-2, H1B, H-4, K-3, K-4, or V status, and remains eligible for that status upon returning to the U.S., the USCIS does not consider the I-485 application to be abandoned, regardless of whether the individual has an AP document.

Historically, the USCIS essentially employed this same policy to one who traveled with a pending I-131 application. If a person with a pending I-131 application had an existing AP document that still was valid, or was in a qualifying status (particularly a dual intent status like L-1 or H1B), that individual generally could travel abroad without impacting the pending I-131. If the AP document was issued while the person was abroad, it still could not be used to reenter the U.S. at that time (i.e., the AP must be issued prior to departing the U.S. to be valid as a travel document for a particular trip). However, the individual still could return using the existing, unexpired AP document or the appropriate visa (e.g., L-1, H1B), and then use the newly issued AP to reenter the U.S. during future travel.

Change in Policy

Without any warning, in 2017, the USCIS changed its policy regarding travel with a pending I-131 application. Suddenly, the USCIS took the position that, if an I-131 application is pending, the application for AP will be denied, regardless of whether the applicant can return in a qualifying status. So, while the travel would not necessarily impact the pending I-485, this policy change made obtaining an AP document more challenging. Further detail on this policy shift is available in the MurthyDotCom NewsBrief, USCIS Denying Advance Parole Applications Based on Overseas Travel (10.Aug.2017).

Updated Policy

A USCIS webpage on emergency travel has been updated to lay out the new policy. “If you file form I-131 … to request an advance parole document and depart the United States without possession of an advance parole document that is valid for the entire time you are abroad, your form I-131 will be considered abandoned. At times, an individual may have an approved advance parole document while a second one is pending. Individuals may travel on the approved advanced parole document, provided the document is valid for the entire duration of the time abroad. The pending form I-131 will not be considered abandoned in this situation.”

Again, the policy regarding pending I-485s remains unchanged. A pending I-485 generally will not be impacted by overseas travel, as long as the individual either is in lawful L-1, L-2, H1B, H-4, K-3, K-4, or V status, and remains eligible for that status upon returning to the U.S., or has an AP document that remains valid through his/her date of return to the U.S. A pending I-131, on the other hand, will be denied if one travels abroad without a valid AP, as described above.

It is unfortunate that the USCIS is continuing to deny I-131 applications for those who travel abroad in qualifying statuses. Still, at least the updated policy does allow stakeholders with valid AP to travel without jeopardizing the pending I-131 applications.

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H-1B and OPT Cap-Gap Extensions

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The H-1B is a nonimmigrant status that permits temporary employment in "specialty occupations" . Many H-1B petitions are subject to a "Cap". The cap refers to the limit of H-1B visas allowed per federal fiscal year (FY). A fiscal year begins on October 1st and ends on September 30th of the following year. Current regulations set the cap at 65,000 H-1B visas for the entire country. To check the latest cap count please visit the USCIS website. Most private industry employer petitions are subject to the cap. Universities and related nonprofit entities, nonprofit research organizations and government research organizations are exempt from the cap.

To find out more about the H-1B, see below and attend one of our H-1B Workshops or take a look at the H-1B FAQ page for general H-1B information . See the USCIS H-1B website for full information on H-1Bs.

The OPT Cap-Gap Extension

A Cap-Gap extension is a regulatory provision which extends an eligible F-1 student's status to bridge the gap between the end of F-1 OPT or OPT STEM work authorization and start of a cap subject H-1B status, allowing the student to remain in the US during the "gap."

Basics & Eligibility

What is the h-1b.

The H-1B is an employer-sponsored nonimmigrant classification which allows persons who are not citizens or permanent residents of the U.S. to work in a specialty occupation for up to six years with very limited exceptions. "Employer-sponsored" means that the employer must apply for the H-1B on behalf of the prospective H-1B employee through the United States Citizenship and Immigration Services (USCIS) . "Specialty occupation" means a position that requires specialized knowledge and skills, and at least a bachelor's degree in that specialty. The H 1B also requires that the H-1B employer pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment. Since the procedures and record keeping required for the H-1B are complex, an attorney or other trained person will be necessary to complete the paperwork.

What is the H-1B Cap?

The H-1B cap is the limit on the number of H-1Bs allowed each fiscal year.* Currently, the cap is 65,000. The fiscal year begins on October 1 when a new batch of the 65,000 H-1Bs becomes available. 20,000 beneficiaries of H-1B petitions filed for new employment or for a change of employer are exempt from being counted against the H-1B cap if the beneficiary has earned a master's degree or higher from a U.S. institution of higher education. See the USCIS H-1B website for the more information.

*The cap does not apply to all H-1B visas. (The cap does not affect H-1B petitions at UC Berkeley.) An individual may be exempt to the H-1B cap if they are employed or have received an offer of employment at a qualifying institution: an institution of higher education, a nonprofit entity related to or affiliated with an institution of higher education, a non profit research organization or a government organization. Berkeley International Office cannot advise on an employer's cap status. Please check with your individual employer and their legal counsel.

What is the H-1B annual timeline for cap subject H-1Bs?

H-1B Registration & H-1B Filing Employers wanting to file a cap-subject H-1B petition must first submit registrations during the registration period (generally during March) , naming and paying a $10 registration fee for each individual they hope to file for. USCIS will then conduct a lottery of all registrations received, and notify employers which beneficiaries have been selected by March 31. After notification, the employer will then have a 90-day period beginning April 1 in which to file a complete H-1B I-129 petition An employer may not file a cap-subject H-1B petition for any beneficiary whose registration was not selected in the registration lottery. For current timelines see the USCIS H-1B Electronic Registration Process website . The actual start date of these H-1B petitions will be October 1, which is the start of the H-1B fiscal year.

The actual start date of these H-1B petitions will be October 1. This means that the H-1B status cannot become effective until October 1.

Eligibility for the OPT Cap-Gap Extension

The Cap-Gap extension is available to students who, are either on approved F-1 OPT or STEM OPT or in their 60-day grace period and have a pending or approved change-of-status for an October 1st cap-subject H-1B petition with USCIS which was filed prior to the expiration of their OPT/STEM or 60-day grace period . For more informaiton, see the USCIS Cap Gap webpage .

What does it mean to have filed for an Oct. 1 Cap subject H-1B petition prior to the expiration of their OPT/STEM or 60-day grace period ? Please understand that the H-1B registration process is different than the H-1B Change of Status filing process! To qualify for the F-1 OPT Cap Gap Extension the employer must have submitted the Form I-129 requesting Change of Status and an employment start date of October 1, and that I-129 filing MUST BE RECIEVED by USCIS before the expiration of the OPT/STEM EAD or 60-day grace period.

Those filing for H-1B via consular processing DO NOT qualify for the Cap-Gap Extension. You must confirm with your employer if the H-1B will be filed as a "Change-of Status" or via "Consular Processing." You may be eligible for one of two Cap-Gap extension benefits:

If the employer filed your H-1B (change-of-status) petition and it is received by USCIS prior to your post-completion OPT expiration date, you qualify for an extension of your OPT employment authorization.
If the employer filed your H-1B (change-of-status) petition and it is received by USCIS after your post-completion OPT expires but during your 60 day grace period following OPT, your F-1 status and permission to remain in the US are extended but you are not eligible to work.

Apply for an OPT Cap-Gap Extension I-20

Petitions that have been filed and receipted: If your H-1B (I-129 including change-of-status) petition has been filed by your employer and receipted by USCIS, you are eligible for an automatic Cap-Gap extension I-20 through September 30th. To request this Cap-Gap extension I-20, access the " H-1B Cap Gap Extension I-20 Request " in your SSU Hub . You will be asked to upload the following:

Your 12 Month EAD or STEM EAD card, if you haven't already
a copy of the I-797 Receipt or Approval notice from USCIS for the I-129 filing

You will indicate your preferred Delivery Method (Express Mail, USPS Airmail or Pick Up). This will take us about 5 business days to process.

Petitions that have been filed but NOT receipted: Currently, SEVIS does not allow Cap Gap Extensions for applications that have not been selected for processing and receipted.

How long will the OPT Cap-Gap Extension I-20 request take?

Berkeley International Office will submit the Cap-Gap request to SEVIS within five (5) business days of the receipt of your request form in SSU Hub (see above), provided all information above is accurate and complete. Sometimes the Cap gap does not appear in the SEVIS record and Berkeley International Office must make a request to SEVIS to correct the record. This can cause delays in processing the request that are out of BIO's control. (See below in Problems and Issues .)

How do I know if I have a Cap Gap Extension on my I-20? What does it look like?

Page 2 of your I-20 will have 2 distinct changes:

Under EMPLOYMENT AUTHORIZATIONS on page 2 of your I-20, your current OPT or STEM Extension will now have a 30 SEPTEMBER end date.

What if my OPT expires before my employer files for the H-1B Change of Status? Will the preliminary or automatic Cap-Gap Extension extend my OPT?

Although your F-1 status would be extended if you are in your 60-day grace period when the petition is filed, your OPT employment authorization period has expired, and the Cap-Gap does not serve to reinstate or retroactively grant employment authorization. Your legal status to remain in the U.S. in F-1 status is extended, but you are required to stop working until your H-1B goes into effect on October 1st ( or at whatever date your Change of Status becomes effective). Consult with your BIO advisor and the legal counsel working on your H-1B application to determine your best strategy and if a Cap-Gap is really the right option for you.

Can I travel during a Cap-Gap Extension period and still return with my OPT I-20 and EAD?

Please note, traveling outside the US may interfere with the processing of your H-1B petition. Berkeley International Office strongly advises students to consult with their employers and the legal counsel processing the H-1B regarding all travel plans before departing the US. Berkeley International Office cannot advise directly on the impact of travel on your individual H-1B application. See the USCIS Cap Gap webpage for more information.

In general, during the Cap-Gap period, you can travel and re-enter the U.S. if:

You have a valid F-1 visa at the time of re-entry
You have an I-20 that reflects the Cap-Gap benefit and has a travel signature (no older than 6 months)
The H-1B petition filed on your behalf has been approved before you travel.

Per Department of Homeland Security policy, an applicant who departs the U.S while a change of status application is pending is considered to have abandoned the application.

Can I file for an H-1B and a STEM OPT Extension at the same time?

Yes, but filing these applications concurrently can sometimes cause complications in your SEVIS record. Y ou can apply for a STEM OPT Extension before your OPT EAD expires. If you are planning to file for an H-1B and STEM at the same time, you should submit your OPT STEM application on time, before the original 12 month EAD expires.

You should also be mindful to take extra steps when filing for your STEM Extension and continuing your F-1 status:

Before requesting a STEM I-20, check with your employer and the legal counsel working on your H-1B and confirm that your employer recommends that you file STEM/H-1B concurrently at this time.
When submitting your STEM OPT Extension include the STEM/Cap-Gap Letter if a Cap-Gap appears on your OPT STEM I-20
If no Cap-Gap currently appears on your I-20, but your employer has filed for the H-1B include the STEM/H1B Letter
Update BIO as soon as possible regarding any Withdrawal or Denial of your H-1B petition. These actions may have an impact on your SEVIS record, and a BIO adviser will need to review the record to see if any corrections need to be made.
If your H-1B is approved, the STEM Extension (or pending STEM Extension) will end on the date your H-1B becomes effective. Report the end of your OPT via the SSU Hub . Select " Report Early OPT/Academic Training Completion " and provide your I-797 Approval Notice From USCIS. Your F-1 record will be completed after the effective date of your H-1B.

Can I also apply for a STEM OPT Extension before my Cap Gap period starts? (BEFORE my OPT EAD expires)

When submitting your STEM Extension include the STEM/Cap Gap Letter
If your H-1B is approved, the STEM Extension (or pending STEM Extension) will end on the date your H-1B becomes effective. R eport the end of your OPT via the SSU Hub . Select " Report Early OPT/Academic Training Completion " and provide your I-797 Approval Notice From USCIS. Your F-1 record will be completed after the effective date of your H-1B.

Can I apply for a STEM OPT Extension during my Cap Gap period? (AFTER my OPT EAD expires, but BEFORE the Cap-Gap extension expires Sept 30)

Berkeley International Office DOES NOT advise submitting a STEM OPT Extension application after the expiration of your original 12 month OPT EAD, even if you have a Cap-Gap Extension on your I-20 which extends your OPT until Sept 30.

USCIS states on its Cap Gap website website that "Students who are eligible for a cap-gap extension of post-completion OPT employment and F-1 status may apply for a STEM OPT extension during the cap-gap extension period. However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day grace period. " However, BIO's current experience is that that STEM applications submitted after the end of the OPT EAD, but during the Cap-Gap period carry a very high risk of denial. Additionally, for those applications that are approved, if the H-1B is later denied, it could cause serious problems the STEM OPT Extension and F-1 SEVIS record. In most cases, the H-1B denial will result in the ending of the STEM Extension and F-1 SEVIS record.

I am already approved for a STEM OPT Extension, and my STEM OPT Extension is expiring. Can I qualify for Cap-Gap Extension to start after my STEM OPT expires?

Yes, STEM extension holders may qualify for the Cap-Gap Extension if they meet eligiblity requirements. See above for Cap-Gap Eligiblity.

My employer filed for my H-1B and the petition has been approved. Should I file for the STEM Extension if my H-1B is already Approved for Oct. 1?

You may not need a STEM extension if your OPT is ending and your H-1B has already been approved. If this is your situation, check with a BIO adviser before submitting your STEM request. An adviser will need to review your record and H-1B approval notice. An adviser will determine whether a STEM Extension or Cap-Gap I-20 is better for you.

Before contacting a BIO adviser, make sure that you have 1) uploaded a copy of your OPT EAD card to the SSU Hub and 2) have your H-1B I-797 Approval Notice From USCIS.

Problems & Issues

Cap-gap not appearing in sevis system/cap-gap data fix.

If Berkeley International Office checks your SEVIS record and finds that Cap-Gap has not automatically been applied, then we will have to request a data fix from the SEVIS Help Desk. In these cases, we will have to submit a copy of your EAD card, your H-1B Receipt Notice or your H-1B Approval Notice. This will often cause a delay in the processing of your Cap-Gap I-20, and you will be notified if there is a delay of more than the 5 business day processing time.

What if my original OPT expires and my Cap-Gap Extension data fix is still pending with SEVIS Help Desk?

Your post-completion OPT is automatically extended, whether you apply for the Cap-Gap extension I-20 or not. Therefore, you are allowed to continue working with your employer while the Cap-Gap extension data fix is pending. Also, keep in mind that the 90-day unemployment rule remains in effect during your automatically extended work authorization. During this time you must continue to update Berkeley International Office of any changes in your employment or address via our Student SEVIS Update (SSU) Hub form.

What happens if my H-1B is rejected, withdrawn, or denied after applying for the Cap-Gap Extension?

If the student's H-1B is not selected, or is withdrawn, denied, or revoked the student will have the standard 60-day grace period from the date of the rejection notice to prepare for and depart the U.S. In some cases it may be possible to apply for an I-20 transfer during the grace period, but this is often not available. However, if a denial is based on a discovered status violation, no such grace period exists and the student must leave the U.S. immediately.

What if a Cap Gap appears in my record, but my employer is not subject to the Cap? Or my employer filed the H-1B for "consular processing"?

You are not eligible for the Cap Gap Extension if your employer is not cap-subject, or if your employer files for your H-1B via consular processing. If a Cap-Gap appears in your F-1 record and you are in one of these categories, please contact Berkeley International Office as soon as possible. An adviser will need to submit a request to SEVIS Helpdesk to remove the H-1B or Cap-Gap information from your F-1 record. If we are not able to remove the incorrect H-1B information from your record, your F-1 record may accidentally complete.

Incorrect consular processing H-1B notations are quite common, as SEVIS sometimes has difficulty identifying whether the petition is a Change of Status H-1B or a consular processing petition.

What if my regular Cap Gap Extension until Sept. 30 expires and my H-1B is not yet approved?

If your H-1B has not yet been accepted for processing and receipted, BIO cannot extend your OPT past September 30 unless you can qualify for and submit a timely filed OPT STEM Extension . If your H-1B is not approved by Sept. 30, your F-1 employment authorization will end. You will then have the standard 60-day grace period from the Cap Gap end date of Sept 30 to 1) depart the U.S., 2) apply for an I-20 transfer , or 3) to work with your employer and immigration legal counsel regarding your current H-1B Change of Status and options to remain in the U.S.

IMAGES

Can i Travel outside US while H-1B extension is pending
Travel while H1B Pending
Can You Travel On OPT While H-1B Petition Is Pending?
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H1-B Visa Extension: Eligibility, Process And Denials
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#ONPASSIVE |WEEKLY UPDATE |O-CONNECT |TIME EXTENSION |PENDING PAY-OUT |TRAFFIC ALLOCATION |WEBINAR
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COMMENTS

Can I Travel While My H-1B Application Is Pending at USCIS?
Traveling While Awaiting an H-1B Extension. International travel while your H-1B extension is pending at USCIS is permitted if you have an unexpired visa, but be aware of a few points before taking your trip. First, you must be present in the U.S. at the time your employer files your extension petition. If you have a pending extension petition ...
Travel while H1B Pending (Extension, Transfer, Amendment, COS)
H1B Extension is Pending USCIS Decision. You can travel outside the USA during pending H1B extension. Make sure you have an existing H1B visa that is valid on the date of your re-entry to avoid trouble. If your current H1B visa has already expired and you travel, you will NOT be able to enter the USA until your pending H1B extension is approved.
Can I Travel While My H-1B is Pending?
You can travel in and out of the U.S. while an H-1B extension is pending if you have an unexpired H-1B stamp in your passport. When you re-enter the U.S., present your valid H-1B stamp from your old H-1B, as well as the receipt notice for your pending extension (or approval notice if your extension is approved). H-1B Change of Employer Petition.
Travel while an H-1B Petition is Pending
If your H-1B extension is pending with USCIS and your current H-1B status has expired, you must not travel internationally because you will need a valid H-1B approval and visa to re-enter the country. If you must travel while your extension is pending and your H-1B status has expired, you will need to remain outside of the U.S. until your H-1B ...
How To Travel On H1B Visa While H1B Petition Is Pending?
Travel on H1B While H1B Extension of Stay or H1B Amendment Is Pending With The Same Employer If an H1B petition to extend and/or amend H1B status with the same employer is pending with U.S. Citizenship & Immigration Services (USCIS), the H1B employee may be able to travel on H1B if:
Maintaining Legal H-1B Status While Waiting for a Green Card
Extending Your H-1B Status While Awaiting a Green Card. U.S. immigration law allows you to extend your H-1B visa past the six-year maximum if you are the beneficiary of an approved I-140 petition and the only reason you have not filed your green card application is because your priority date is not current. There is also a way to extend H-1B ...
Traveling in H-1B Status
Except for Canadian citizens, all international scholars/employees and family members will also need to have a valid H-1B/H-4 visa stamp in their passport issued by a U.S. embassy or consulate abroad. Visa stamps cannot be obtained or renewed inside the U.S. The only exception to this is the limited pilot program that the Department of State is ...
Travel and Pending H-1B Petitions
International Travel While Extension Petition is Pending You must be in the US when the H-1B extension petition is actually filed with USCIS. Once filed, you may continue to travel internationally and should be able to return with your existing H-1B visa and I-797 approval notice while the extension is still pending with USCIS.
Travel on H-1B Visa
You can travel internationally and reenter the U.S. while your H-1B status is being extended or transferred from one employer to another, provided you have a valid I-797 Approval Notice and a valid H-1B visa (unless visa-exempt or eligible for automatic visa revalidation). If your current H-1B expires before you return, you may have to wait ...
Expectations of Those in H-1B Status
International travel while an extension of status petition is pending with U.S. Department of Homeland Security is permissible. Please note that you must be in the U.S. when the H-1B petition extension is filed. If the extension is approved while you are abroad, you must reenter the U.S. using the new Approval Notice. This means that the ...
Travelling while an H-1B Petition is Pending at USCIS
Travel While an Extension of H1B Status is Pending. An H1B nonimmigrant employee is permitted to travel while an application for Extension of the H-1B Status is pending, provided they are traveling on an unexpired H¬I B nonimmigrant visa, except where exempt under the visa exemption regulations, and can show that they are returning to the U.S. to continue the previously approved H1B employment.
Extending Your H-1B Visa
Current H-1B visa holders are entitled to an automatic 240-day extension or your H-1B work authorization at UCSF as long as the following two conditions are met: ISSO has filed your H-1B extension request with USCIS before the end date of your current H1B status. Your I-797c Notice of Receipt has arrived at the ISSO.
Chapter 4
See 8 CFR 214.1(a).See 8 CFR 214.1(c) for general requirements, such as those relating to passport validity and waivers of inadmissibility for an EOS.. See INA 248.See 8 CFR 248.. See 8 CFR 214.1(c).The application should be filed in accordance with the form instructions. The instructions for Form I-539 and Form I-129 provide detailed information regarding who may file each form.
Article
Note on international travel while change or extension of status application is pending: You must be physically present in the U.S. at the time of filing a change of status petition and during the entire period that the petition is pending. If you leave the U.S. while the petition is pending, Immigration will hold that you have abandoned the ...
Travel while H-1B extension is pending
1. The "extension" that your company applied for is an extension of the H1b petition, plus a request for H1b Extension of Stay (i.e. to extend your status). If you leave the US while it is pending, the petition extension will continue to be processed (you don't need to be in the US to be petitioned for H1b), but the Extension of Stay ...
Extension of Post Completion Optional Practical Training (OPT ...
ALERT: Although F-1 nonimmigrant students with degrees in science, technology, engineering, or mathematics (STEM) may apply for a 24-month extension of their post-completion OPT employment authorization, our policies regarding the cap-gap extension remain the same. An F-1 student who is the beneficiary of a cap-subject H-1B petition and request for change of status that is filed on time may ...
Effect of Travel While in H1B / L-1 Status and Pending I-485
The May 2000 memorandum clarified that an H1B (or L-1) nonimmigrant, who has traveled abroad and reentered the United States on AP "may apply for an extension of H1B or L-1 status, if there is a valid and approved petition.". If the USCIS approves the petition, this "will have the effect of terminating the grant of parole and admitting ...
H1B Travel While Your I-485 Is Pending
Traveling while your I-485, Application to Register Permanent Residence or Adjust Status is pending can be tricky. Generally speaking, traveling with a pending application will directly result in an abandoned application. However, in certain cases, traveling does not affect the status of the application. As an H-1B visa status holder, there.
H-1B Travel While Your I-485 Is Pending
If you are going to travel outside of the U.S. while your I-485 adjustment of status petition is pending but you still have a valid H-1B valid visa, then you can use the H-1B visa to re-enter the U.S. after your journey abroad. In this case, you don't need to obtain any other travel documents. This is one of the benefits of maintaining a ...
Domestic Traveling while pending H1B extension
My H-1B visa expired on June 30, 2021, and my employer in the US applied for an extension on June 18, 2020. I have a trip within US next week, but my employer has not received the I-797 with the case ... Domestic Traveling while pending H1B extension. Ask Question Asked 2 years, 10 months ago. Modified 2 years, 10 months ago. Viewed 277 times
THIS is how H1B 240 days rule works with Extensions [2021]
After filing H1B extensions, while USCIS is processing these petitions, the employees with pending H1B visa extension petitions are authorized to work for up to 240 days or until USCIS Denies H1B Extension petitions, whichever comes early. ... Can one stay beyond 6 years if extension request (to capture travel time) is pending? PERM is under ...
USCIS Revises Policy on Travel While AP is Pending
The policy regarding overseas travel, while an I-131 application for advance parole (AP) is pending, has been updated by the U.S. Citizenship and Immigration Services (USCIS). ... if the I-485 applicant is in valid L-1, L-2, H1B, H-4, K-3, K-4, or V nonimmigrant status, and remains eligible for that status upon returning to the U.S., the I-485 ...
240-day Rule: Eligibility To Continue Employment While Extension Is
An H-1B alien for whom the employer has filed a timely application for an extension of H-1B stay can continue employment for the same employer while the request for extension of stay is pending with USCIS, for a period of up to 240 days beyond the expiration of the prior period of authorized stay. 8 CFR 274a.12(b)(20)
H-1B and OPT Cap-Gap Extensions
The H-1B is a nonimmigrant status that permits temporary employment in "specialty occupations" . Many H-1B petitions are subject to a "Cap". The cap refers to the limit of H-1B visas allowed per federal fiscal year (FY). A fiscal year begins on October 1st and ends on September 30th of the following year. Current regulations set the cap at ...