Can I leave US while my H1 extension is under process

[biran]

Hi All ,
I have a valid H1 till May 2003. I am applying premium H1 processing
now. Lets say I apply on March 1st week. I am planning to go to UK for a
trip in March to April. Are there any issues in this? I mean can I leave
the country and come back with my old H1 before its expiry date ?

Thanks

--
Posted via http://britishexpats.com

[Stuart Brook]

biran wrote:
>
> Hi All ,
> I have a valid H1 till May 2003. I am applying premium H1 processing
> now. Lets say I apply on March 1st week. I am planning to go to UK for a
> trip in March to April. Are there any issues in this? I mean can I leave
> the country and come back with my old H1 before its expiry date ?
>
> Thanks

It will cause the extension of status to be considered abandoned.
While you could re-enter with the old H1B, you would have to take the
I-797 the INS issues and leave the US and get a new passport visa and
re-enter.

Leaving the US while you have issues outstanding with the INS is NEVER a
good idea.

[Ingo Pakleppa]

It's true that leaving is not a good idea for a number of reasons, but the
extension actually wouldn't be abandoned. INS changed their policy on that
a while ago, and now uses a "last approved I-94" policy. That is, even
after returning, the I-94 he got with the extension would still be good,
as long as his extension was approved after his return. If the extension
was approved before he returned, then the I-94 he got at the airport would
count (because it is the last one). That's one of the reasons it's not a
great idea to leave.

To answer the original poster's question: your best strategy is not to
apply in March at all, but rather not file the extension until after you
return from the UK. You don't need to use premium processing. As long as
the extension is filed before the day the old H-1B expires, your old H-1B
is considered automatically extended by 240 days, or until INS decides
about your extension, whichever happens first.

[Stuart Brook]

Ingo Pakleppa wrote:

> It's true that leaving is not a good idea for a number of reasons, but the
> extension actually wouldn't be abandoned. INS changed their policy on that
> a while ago, and now uses a "last approved I-94" policy. That is, even
> after returning, the I-94 he got with the extension would still be good,
> as long as his extension was approved after his return. If the extension
> was approved before he returned, then the I-94 he got at the airport would
> count (because it is the last one). That's one of the reasons it's not a
> great idea to leave.

When did this happen ???? I haven't heard of it and know of people who
got into trouble quite recently with abandoned extensions (within the
last few months).

Stuart

[Ingo Pakleppa]

Actually, my information here is second hand. Somebody else reported that,
and it was at least a year or two ago.

Was that an abandoned *extension* or an abandoned change of status? It is
my understanding that this policy did not extend to COS, only EOS.

Of course, it is also possible that either I am wrong, or that the INS
officer who gave your people problems didn't know.

[Stuart Brook]

Ingo Pakleppa wrote:

> Actually, my information here is second hand. Somebody else reported that,
> and it was at least a year or two ago.
>
> Was that an abandoned *extension* or an abandoned change of status? It is
> my understanding that this policy did not extend to COS, only EOS.
>
> Of course, it is also possible that either I am wrong, or that the INS
> officer who gave your people problems didn't know.

EOS ... the rationale being the moment you leave the country you've lost
your status on which you based your request to extend (after all you
sent the details of your last I-94), although it applies to anything
that affects status.

Stuart

[Ingo Pakleppa]

Yes, the rationale used to be what INS used. I have been looking for
online evidence of this change in policy, but so far have come up fairly
empty. The best I found was
http://www.cpaea.org/immigration/news/106.html. Note that item 5 lists COS
but not EOS as abandoning the application.

Unfortunately, I have been unable to find the underlying INS information
bulletin online; apparently, it was issued in May 2001.

[biran]

Thanks a lot experts.

[Manish]

I think application for an extension of nonimmigrant status
would
not be abandoned, basis for that is the below Memo
:

http://www.ins.gov/graphics/lawsregs/handbook/Travpub.pdf

please read the last lines on first page

[biran]

Thanks Manish , It seems that I can step out of USA while my H1B
extension is under consideration.

[Stuart Brook]

Manish wrote:
>
> I think application for an extension of nonimmigrant status
> would
> not be abandoned, basis for that is the below Memo
> :
>
> http://www.ins.gov/graphics/lawsregs/handbook/Travpub.pdf
>
> please read the last lines on first page

While that may be the case, routinely, people who've put in extension
requests who've stepped out of the US have had their extension of status
requests considered abandoned by INS port officers.

[Ingo Pakleppa]

That's unfortunately quite true. INS officers often don't know the law.

[Sylvia Ottemoeller]

"Manish" <memb...@britishexpats.com> wrote in message
news:643957.1...@britishexpats.com...

> I think application for an extension of nonimmigrant status would
> not be abandoned, basis for that is the below Memo :
>
> http://www.ins.gov/graphics/lawsregs/handbook/Travpub.pdf
>
> please read the last lines on first page

I would like to point out this eligibility to leave the U.S. without
abandoning a pending H-1B extension petition (with the same employer)
applies only if the person returns before the expiration date of the
previously authorized status -- as biran plans to do.

If the person tries to re-enter the U.S. after the expiration of the
previously authorized status, and before the approval of the extension
petition, the person will be refused as he has no status to enter into.

(This is a different situation, by the way, from that where the person has
changed H-1B employers, and still has a valid visa stamp and period of
authorized status under the *old* petition, with the petition for extension
and change of employers still pending. A person is taking a chance in
trying to enter under those circumstances, but it is legal and can be done.)

[Stuart Brook]

While this is true, many INS officers have been known to make people
file "cancel extension of status but approve job" letters when going out
of the country like this. This means that they cannot use the new paper
I-94, but must leave and re-enter with the I-797, and often having to
get a new visa. It creates quite a mess.

Sadly, the INS is not consistent as we well know.

[Sylvia Ottemoeller]

"Stuart Brook" <s_brook...@not.here.for.spam.att.canada.ca> wrote in
message news:3E497063...@not.here.for.spam.att.canada.ca...

> Sylvia Ottemoeller wrote:

May I ask -- how does the INS officer know there is an I-539 pending? Is it
found in the computer at the port of entry?

[Stuart Brook]

Sylvia Ottemoeller wrote:

> May I ask -- how does the INS officer know there is an I-539 pending? Is it
> found in the computer at the port of entry?

Yup ... they can see any entered pending applications (I-129, I-539,
I-130, I-140). There does seem to be a hit and miss consistency typical
with the INS too (dunno if it's because a) network issues, b) they
sometimes ignore them, or c) the details aren't always posted) ... just
to add to the dance.

Stuart

[Ingo Pakleppa]

Easier than that: they see that the old petition is about to expire and
ask you about whether or not you have an extension pending.

[Stuart Brook]

There certainly is that one too ... but often stuff does show on their
computer.