This article was published by Annie Blay on Legalpad.
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.
