going out of the country while H1B extension is pending

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fishie

Registered Users (C)
Hi Experts,

I have a H1B extension pending now. I have advance parole document. Can I leave the country for a few weeks while H1B is pending? What is the consequence? Should I wait until it is approved?

Many many thanks for your help!
 
Please help me

Please help me with the question above. I heard you can not travel outside US when you H1 is pending . But I am not sure whether it is still true if one has advanced parole document.
 
I am also in same situation

I am also in same situation. My H1B is pending and planning to travel on AP. Please let me know if you find any information on this
 
fishie & iwantgc9
You didnt mention what stage of GC you are in, Assuming you have pending I485 and Approved AP. Actually there is no leagal requirements for you to be in the country, when you apply for H1B Extn, You must be present on the day you apply for the Extn i.e. the Recipt Date of your case. You be very careful while leaving the country though.

- You have one choice that while you are travelling out of US ( assuming to your home country) and your H1B is approved while you are out, you may schedule an interview for stamping and come back on H1B status itself.

- Otherwise once you enter on AP you enter as Parolee and your H1B status is void including your new extension. So you must have a valid EAD in this case to continue your employment. But bottom line is that your H1B (and any associated H4) become void.

- The safest way and thats what the Lawyers suggests is to stay and wait for yoru H1B Extn Approval and then you avoid all the hassel of stamping and waiting for the appointment overseas for stamping. You schedule your appointment and your trip accordingly.

I am providing these scenerios without knowing your status, so pls check whatever is applicable in your case.

Hope this helps.





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Still confused

Thank you Bhasu and UnitedNations!

My spouse's I-140 was approved. We filed I-485 together after I140 approval. I filed 7th year H1B on 12/24, my current H1B expired 1/1/06.

My lawyer said I can leave the country and my H1B will still be extended. And I will come back in parolee status. I am not sure whether he understood my situation completely.
 
unitednations said:
If your I-94 card has expired and you are working in the "extension period", you have to remain in the country until it is approved.

You can only extend status if you are in that status. Once you leave the country you are not in h-1b status but rather no status at all. If you are in no status then you cannot extend. USCIS if they come to know and it seems like they have access to whether you are out of the country or not would wind up denying the extension but approve the h-1 without I-94 card, which would cause you to go for visa stamping.

Please note if you are beyond your six years some of the service centers position is that you have to be within your six years h-1b to extend. If you are off h-1b and six years has expired then they will not give the extra year. Therefore, if you are considered off h-1b then they may not approve h-1 at all; with or without i-94.

However, if you have advance parole and ead and your 140 is approved you won't be severly impacted.
Click to expand...

I went out and came back while my H1 "transfer" was pending. The visa in passport was still valid for 3 more months. This was within 6 years, and before any 485/AP.
 
This was the scnenario with my spouse.

Was working for Company Apple on H1
Applied H1 Transfer to Company Banana.
Did not start working for Banana.
Left Country.
Entered using AP.
H1 Transfer Got Approved for Company Banana.

What is the status now?
 
Last edited by a moderator:
Lawyer called this mornign

Thanks all!

My lawyer called this morning and apparently he confused me with somebody else. He said I can not go out of the country while H1B extension is pending. Otherwise the application is automatically withdrawn. This agrees with what UnitedNations quoted.

I will postphone my airline ticket.

One more question, once I have the extension approved and I leave and come back with parole, I should still be able to work under H1B visa while I come in parolee status, no further action required, correct?
 
fishie said:
My lawyer called this morning and apparently he confused me with somebody else. He said I can not go out of the country while H1B extension is pending. Otherwise the application is automatically withdrawn. This agrees with what UnitedNations quoted.
Click to expand...

Keep in mind that what UN mentioned was extension of H-1 status, not the extension of the H-1B petition. Being or going outside the US has no effect whatsoever on the H-1B petition.

One more question, once I have the extension approved and I leave and come back with parole, I should still be able to work under H1B visa while I come in parolee status, no further action required, correct?
Click to expand...

Provided you're only working for your H-1B sponsor under the terms of that H-1B, correct.
 
RealCanadian, please clarify.

Thanks RealCanadian!

But UnitedNations quoted this:

"Consider the INS position on travel abroad while an application to change nonimmigrant status is pending. The minute you leave the country, the application is deemed abandoned. Why? Because it is generally recognized that if you’re not here, you have no status to change."

This seems to apply to H1B petition. Did I understand incorrectly?
 
fishie said:
This seems to apply to H1B petition. Did I understand incorrectly?
Click to expand...

As with all employer-based petitions, you are not a party to the H-1B petition. The employer petitions USCIS to allow you to work in the US, and based on that approved petition you seek entrance to the United States or an extension of your status. As UN has correctly pointed out, there is a distinction between the extension of the underlying petition and the I-94 card that may or may not be granted upon its approval.

Therefore, if you leave the US while your H1 extension is pending, you may not get a new I-94 card with the approval. However, since you are not a party to the H-1 petition, there is nothing (short of dying or becoming a permanent resident or US citizen) that you can do to affect that petition.
 
I finally realized the difference between extension of H1B status and H1B petition

Many thanks to UnitedNations and RealCanadian!

I finally realized the difference between the extension of H1B status and H1B petition. My I-94 is not valid anymore since my last H1B expired recently. I do need a new I-94. I think I will postphone the trip since I don't want to go out the country to get a new visa stamp.

But if this is the case, once I leave US and come back using parole after I get new H1B and new I-94 card, I will be admitted in parolee status, how does that conflict with H1B status, will I be in dual status automatically? Or do I need to do something to be put in H1B status? I read from something long time ago, I will be in parolee status until either I reenter in H1B or when I extend H1B visa next time, is this understanding correct?

Thanks again for taking your time to answer my questions!
 
Thanks all. I got different Answer from my attorney

I am going to my country on AP and H1B is pending. I called my attorney today and they told me that you can go and come back on AP and H1B petition is still valid. If we work for same employer, they said there is no problem for H1 Status

My Status
140 Approved
485 Pending
H1B expired
New H1B petition is pending
 
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