No, in general we discourage travel outside the U.S. while a change of status petition is pending.
Travel Outside the U.S. While Change of Status Petition Is Pending
An individual who has status under one nonimmigrant visa category can change to another category pursuant to INA section 248 (8 USC 1258). For example, an individual with an H-1B nonimmigrant worker visa can change status to a B-2 tourist visa. The process of changing status can take months, however. Can the applicant leave the U.S. while the change of status petition is pending?
Unfortunately, your change of status petition would be considered abandoned once you leave the United States, meaning that the change of status petition will be denied. Even if the government mistakenly approves your change of status petition after you leave the country, the approval is deemed void as a matter of law once you leave the country. To quote the government’s guidance on the subject: “If at any time it comes to the attention of the [government] that an alien on whose behalf a request for a change of nonimmigrant status has been filed has traveled outside of the United States during the pendency of the request for a change of status, the application or petition should be denied pursuant to 8 CFR 248.3(g).” (Memo from Thomas Cook, Acting Assistant Commissioner, Office of Programs, U.S. Dept. of Justice Immigration and Naturalization Service, HQ 70/6.2.9 (June 18, 2001)).
Also note that if you are out of status upon your departure from the U.S., your current visa could be cancelled. (See INA section 222(g)). If you filed a petition for nonimmigrant status along with the change of status petition, the petition for nonimmigrant status may still be approved. However, remember that having status (which gives you the ability to remain in the U.S.) is not the same as having a visa (which gives you the ability to enter the U.S.). As a result, even if your petition for nonimmigrant status is approved, you would need to apply for and receive a visa to reenter the U.S. from a consulate abroad (or possibly at a port of entry, if you are a Canadian national).
The regulations provide an exception, permitting change of status even while out of status where “[t]he failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or petitioner” and where “[t]he alien has not otherwise violated his or her nonimmigrant status.” (8 CFR 248.1(c)). If you believe this might apply to you, we encourage you to speak with a qualified immigration attorney.
Travel Outside the U.S. While Extension of Status Petition Is Pending
Traveling while your extension of status petition is pending is also not recommended, and brings with it a number of risks. See our earlier post on traveling with a pending extension of status petition here.
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