In this article we discuss important questions about travelling while your H-1B transfer is being processed by USCIS. If you are currently on an H-1B visa and you change employers, your new employer must transfer your H-1B.
To transfer your H-1B, your new employer must obtain a Certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) and thereafter, submit a request to change employers on Form I-129 with the U.S. Citizenship and Immigration Services. To learn more about the H-1B transfer, visit our H-1B transfer process, requirements and processing times and H1B transfer success stories.
You cannot travel while your H1B transfer is pending at DOL. However, it is possible to travel outside the US while your H1B transfer to new employer is pending at USCIS. Here, we explore best practices regarding travel during your pending H-1B transfer.
1. Travel outside the US during pending H1B transfer
You can travel while you transfer your H1B to a new employer and your petition is pending with USCIS.
According to the Foreign Affairs Manual (9 FAM 402.10-11(A)), you can travel on your valid H-1B visa from your prior employer while your H-1B transfer is pending at USCIS as long as you can provide evidence that an H-1B transfer petition was timely filed on your behalf.
Here’s what you need to present to re-enter the US:
H-1B portability rules allow you to travel and re-enter the US with your new employer’s USCIS filing notice (Form I-797). However, keep in mind that travelling abroad while your H-1B transfer is pending at USCIS carries risk of entry issues.
For example, if CBP cannot verify your transfer petition during your travel, your re-entry may be delayed. Also, if your H-1B visa and petition have expired, you cannot receive a new H-1B visa while your transfer petition is pending. You can only receive a new H-1B visa for your new employer if USCIS approves your pending transfer petition.
If USCIS denies your transfer petition during your travel abroad, you cannot obtain a new H-1B visa or re-enter the United States in H-1B status to work for your new employer.
2. Travel after H1B transfer is approved
You can travel on your valid H-1B visa even if you have changed employers. If you travel after USCIS approved your H1B transfer to a new employer, you must present evidence of the approved change of employer petition together with your existing H-1B visa.
To re-enter the United States, you must present the following documents:
You must present both documents to US Customs and Border Protection (CBP) upon arrival to the United States.
However, if your H-1B visa from your previous employer has expired, then you need to obtain a new H-1B visa from a US consulate abroad before returning to the United States.
Malescu Law can assist
Timing is of the essence if you are changing employers, or you plan to change employers and need to travel during your H1B transfer. Many employers are in dire need of the H1-B applicant’s services and at times require training or onboarding abroad.
If you plan to travel while your H1B transfer is still in process, you should contact an experienced H1B visa lawyer prior to leaving the country. There are many factors that can impact your immigration status and ability to return to the United States.
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