Can I travel while my extension of status is pending?
Yes, if you have an extension application pending, it is possible to travel without abandoning the application. This is different from a change of status, where leaving the U.S. will result in abandoning the application, resulting in a denial.
What is the procedure for filing an extension?
If you are in the United States and decide you want to stay for a longer time than you were given when you entered, you can apply to extend your status by filing an Application to Extend Nonimmigrant Status with the USCIS. If you are on an employment based visa such as an H-1B you would file a Petition for a Nonimmigrant Worker instead. Processing times for these applications vary, but often it can take several months for a decision to be issued.
What should I consider when deciding whether to travel while my extension is pending?
If you applied for an extension of status and suddenly find that you have to leave the U.S. for some reason, you are permitted to travel while the extension is pending, however doing so may complicate your extension application and impact your status in the United States. This is because of something called the last action rule, which is a USCIS rule based on an opinion letter written on behalf of USCIS by Efren Hernandez that states the last action taken on a case will govern the applicant’s status in the United States.
A common scenario is a person on an H-1B visa who files for an extension of status and wants to travel while the extension is pending. If she applies for an extension of her H-1B and then leaves the U.S., her extension may be adjudicated while she is outside the United States. If this happens she would need to get a copy of the H-1B approval and get a new H-1B visa stamp at a Consulate before re-entering. If she re-entered the U.S. on her old H-1B visa the border officials would stamp her passport only up to the end date of the old H-1B visa. The extension granted while she was traveling would essentially be erased, as the last action she took was entering the country on the old H-1B visa and she would be issued a new I-94 with a shorter date.
The issue of accidentally reducing your own status, or even changing your status inadvertently is a big reason why applicants for extension of status may want to avoid travel while the extension application is pending. For example, if you are in the U.S. on a B visa and file an application to extend your status for 6 months and then leave, when you re-enter you will get a new I-94 that allows you to stay in B status for 6 months from the date of entry. However, once your extension application is decided USCIS will issue a new I-94 which will control and would shorten your status to the date you requested on the extension application. Another issue may arise if you apply to extend your status and then leave and re-enter on a different status. Taking the example above, if you were investigating E-2 opportunities in the US on a B-1 visa and applied to extend your status and then left the U.S. to get your E-2 visa, you would need to withdraw the extension application. If you did not withdraw the extension, you could enter on the E-2 visa and be in E-2 status and then suddenly switched to B-1 status when your extension application was decided and a new I-94 issued.
Although it is possible to travel while an extension of status is pending, you should carefully consider whether it is necessary and consult with immigration counsel to ensure you do not reduce or change your status accidentally as a result of travel.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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