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What is the Last Action Rule? Should I be worried when I travel internationally after the H-1B petition was approved but before the H-1B effective start date?

By February 24, 2020May 19th, 2021H-1B and E-3 Visa, Immigration
Creative Commons photo by Wilerson S. Andrade - labeled for reuse.

Let’s analyze the following scenario: You were in the U.S. on a post-completion OPT and found an employer willing to sponsor you for an H-1B visa. The employer filed an H-1B cap petition that got approved in July with the start date October 1 and you want to travel internationally in August.

The question then arises: if you travel internationally in August and enter the U.S. on your F-1 visa in August, will you have to leave the U.S. again before October 1 to enter on H-1B visa so your status changes to H-1B on October 1?

What is the Last Action Rule? How does it apply in this scenario?

If you entered the U.S. most recently in August as an F-1 student, you do not have to leave and re-enter the U.S. on your H-1B visa (you would have to apply for an H-1B visa at a U.S. Consulate abroad beforehand) if your H-1B petition was approved before you left the U.S. and the effective start date is October 1. The reason is, that so called Last Action Rule would apply – under the Last Action rule, the last action taken by USCIS governs. In this scenario, the last action would be “the taking effect of the change of status” (October 1), meaning, that you would automatically be in the H-1B status starting October 1, and you would not have to leave and re-enter the U.S. before this date.

Please note, that you have to have a valid F-1 visa stamp when you want to travel internationally during the cap-gap period and you should also get an updated Form I-20 that reflects that you are currently in a cap-gap status before you leave the U.S. Please also note that if you travel outside the U.S. before your change of status application is approved, the application will be deemed to be abandoned.

Is the Last Action Rule based in immigration regulations?

The Last Action Rule cannot be found anywhere in the immigration regulations. The rule originated in 1993, when Jacquelyn A. Bednarz, at that time a Chief of Nonimmigrant branch for Adjudications who responded to Mr. Charles M. Goldsmith and first mentioned the Last Action Rule. In addition, in 2004 the Last Action Rule was again addressed in a letter by Efren Hernandez, at that time a Chief of Business and Trade Services Branch of USCIS.

The Last Action Rule applies in different scenarios and you should always be mindful that the last action taken by the US government governs your case. For example, if you file two different petitions: for example if you first file a change of status petition to a B visitor and you later file a change of status petition to an H-1B worker, whether you are in a B or an H-1B status would depend on which petition was adjudicated last by USCIS. This would mean, that even though the H-1B petition was filed later but was adjudicated first and the B petition was adjudicated the last, you would be in a B status and could not accept employment and work for the H-1B employer.

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