Kristina M. Hernandez
Travel while H-1B Cap Petition is Pending
Updated: Jul 24, 2020
Nonimmigrant visa holders, including F-1 students, considering international travel after filing an H-1B cap petition should consult with their immigration attorney before making travel plans in order to discuss the risks involved in their particular situation. The nonimmigrant should also make sure they are prepared with the proper documentation before leaving the U.S. Below are some common questions I receive regarding traveling with a pending H-1B cap petition and the documentation to carry while traveling:
I’m an F-1 student and my H-1B petition is pending adjudication with USCIS. Can I travel while my H-1B petition is pending?
If you leave the country while a change of status is pending, you will abandon your change of status request. If issued an approval it will be without an I-94 card. So, if you later return in your F-1 status, your H-1B change of status will not take effect on October 1st. You will have to leave the country and go for H-1B stamping at a U.S. embassy or consulate in order for your H-1B status to take effect.
My H-1B petition got approved, but I’m out of the country and I need to go for H-1B stamping. What documents are needed for the interview?
Pursuant to the Presidential Proclamation issued on June 22, 2020, if you were outside the country on June 24th, you will not be eligible for H-1B stamping until after December 31st (unless the President extends the Proclamation).
Once you are able to schedule and interview and go for H-1B stamping, or if you were not subject to the Presidential Proclamation, generally H-1B applicants should carry the original I-797 Approval Notice, a copy of the I-129 petition, a letter confirming their employment from the petitioner, education documents, and recent pay records. If you are assigned by your employer to a third-party work location, you should also carry recently-dated vendor and end-client letters, and relevant contracts and work orders between the parties.
What documents do I need at the port of entry to enter in H-1B status?
At the port of entry you will need to show a valid visa stamp, the original I-797 Approval Notice, and an employment verification letter from the Petitioner (your employer). Make sure your passport is valid beyond the expected validity date - if it isn't, CBP will only issue your I-94 until the date your passport expires. If your passport is about to expire, it is advised that you try to renew your passport before traveling.
I'm back in the U.S.! Anything else I should do?
After entering the U.S. you should check your I-94 on the CBP website here. Check that your name, class of admission, and validity end period match your recent I-797 approval notice. If any information is incorrect, you may be able to get it corrected at a CBP deferred inspection office if the mistake is caught early on. It is important to remember that your most recent I-94 is the document that controls your stay in the U.S., so if a CBP officer made a mistake it is crucial to get it corrected immediately. There have been situations where individuals did not check their I-94, noticed a mistake quite some time later, and ended up overstaying the "Admit Until Date" on the I-94. This is the exact situation you want to avoid!