QUESTION: Currently, my wife has H4 status, but she received a job offer and was picked in the FY2016 H-1B visa lottery. She wants to travel for a wedding on May 15th, 2015 and to return on July 8th, 2015. I would like to know if she can travel while USCIS is processing the H1B application?
ANSWER: At first blush, the answer to this would seem obvious. She has valid H-4 status now. She will have valid H-1B status in the future. So she should be able to travel now and return on her valid H-4 later this summer, and so long as her H-1B is approved, she would be able to adjust to H-1B in October. Oh, but the devil is in the details when it comes to U.S. immigration law. After some digging, I uncovered correspondence between Susan J. Cohen, Esquire and Efren Hernandez, USCIS Chief of Business and Trade Services Branch, written in 2004, that describes the effect of the Last Action Rule on travel during the pendency of an adjustment of status case. Using the scenario posed in the letter from Ms. Cohen to Mr. Hernandez but modifying to our reader’s question, I will explain how the Last Action Rule effects the change of status for beneficiaries of an H-1B petition, particularly those who are picked in the April H-1B lottery.
Scenario 1: Assume our H-4 files premium processing in the FY2016 H-1B lottery and is picked on April 20, 2015. She receives notice of approval on May 10, 2015 and travels abroad to a wedding on May 15, 2015. She returns on July 8, 2015. What effect does the travel have on her H-1B adjustment of status?
Answer: The H-4’s change of status will take effect automatically on the date noted on the Notice of Action (Form I-797), October 1, 2015, even if there is an intervening admission. The “Last Action Rule” does not affect the change of status because the last action is the taking effect of the change of status on October 1.
Scenario 2: Assume our H-4 files regular processing in the FU2016 H-1B lottery and is picked on April 20, 2015. She travel abroad to a wedding on May 15, 2015 before her H-1B is approved. She returns to the U.S. on July 8, 2015. What effect does the travel have on her H-1B adjustment of status?
Answer: The H-4 will remain an H-4 because she traveled abroad before the H-1B is approved. She will be considered to have abandoned her H-1B. Therefore the “Last Action Rule” would effect the change of status because the last action would be entering as an H-4, which would continue to be her status beyond October.
Lesson: do not travel when a petition is pending with USCIS!