URGENT!!! Is it possible to travel outside US when H1B extension petition is pending.

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dpk100

Registered Users (C)
My H1B Visa is expiring on November 15th. My current employer has already filed for an extension at VSC, got the receipt number on 3rd September.

Due to family emergency, I have to travel urgently to India in mid October for 2 weeks (I will be back by 3rd weekend of October).

My employer had told me earlier that it's not possible for me to go out of country until I get my approval notice, otherwise they will have to refile for my extension, BUT I heard from one of my friend that it is possbile for me to leave the country and come back as long as the duration of the trip is for 2 weeks and 8-10 days before my H1B expires, all I need to do is come back and submit a copy of my new I-94, my employer does not need to re-file for the extension. My friend also mentioned something about "last action rule" which states this provision.

Would appreciate if anyone can validate the "option" that has has been told by my friend, if it's not true then I would not take the chance and rather pay money out of my pocket for "premium processing".

Thanks in advance.
 
last action rule has no relevance...

When you come back , you can request the inspector to issue the same I94, other wise with a new I94 you will have to apply for a fresh extension.
However there have been instances where the applicant returned before approval date and have argued with INS that the I94 that came with new approval supercedes the I94 gotten at the POE.
This might be an option for you. (remember this might not apply for your dependents..., since a change of status applicant does not enjoy this benefit)
 
Jaxen, thanks a lot for the reply !!!

I needed some more insights to your reply. How is it possible to request the immigration inspector at POE for the same I94, won't they have different number? Also I won't have any I94 in my passport at POE, since I have to give it back when I leave US.

Also about the second option you mentioned, are there instances where people have won that argument ?

Thanks in advance.
 
Anna,

Thanks a lot for your reply. According to the attached file I fall into the following category:

"2. If You Travel and reneter USA during the Pendency of an H-1 EXTENSION (Working for the same employer)
____________________________________________________

You will probably have to get an H-1 visa before you can start work."

I am confused, when I will be back in October I will already have an H1B visa which will be expiring on November 15th. Does it mean from your answer that after November 15th I will be out of status and can work again only after getting the approval of my H1B extension? OR my employer files for another extension?

Thanks.
 
Travel while H-1 is pending

You can continue to work when you return. But, it is not advisable to travel when you have a petition pending with INS, because when you travel abroad two things change which alter the facts stated to INS in the H-1 petition. One, the date of your last arrival into the USA will now be different, and two you will be issued a new I-94 upon reentry into the USA.

In this case, you will have to make the necessary changes regarding your dates of entry with INS upon your return to the US (which can be a big deal!) - or, you might have to travel outside the US again upon receipt of your extension approval, in order to get a new I-94 again.
 
Anna thanks a lot for the reply. To play it safe I am going to go ahead with premium processing.
 
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