Now that the summer vacation season is officially upon us, it is important for employers and their nonimmigrant workers to consider the potential risks nonimmigrant workers face when traveling internationally prior to the start date of an approved H-1B petition. According to an informal immigration policy known as the “Last Action Rule,” the last action taken with regard to one’s immigration is deemed to govern a foreign national’s nonimmigrant status. As such, depending on the specific circumstances, international travel prior to the start date of an approved H-1B petition could result in the abandonment of the H-1B petition, cutting short a foreign national’s period of valid admission into the U.S.
H-1B Petitions Requesting a Change of Status
Although its broad application remains murky, the United States Citizenship and Immigration Services (“USCIS”) has articulated informal guidance clarifying the effect of the “Last Action Rule” when international travel occurs prior to the start date of an H-1B petition requesting a change of status. In an opinion letter written on behalf of USCIS by Efren Hernandez, Chief, Business and Trade Services Branch, USCIS reasoned that an approved H-1B petition requesting a change of status takes effect automatically on the effective date, despite an intervening admission in the prior nonimmigrant status. This is because the petition taking effect is considered the “last action” in the sequence of immigration-related events. Although the beneficiary would receive a new I-94 based on the most recent travel, the I-94 at the bottom of the H-1B approval notice would control, and the change of status would still occur on the effective date. While this guidance is helpful, its application is limited to circumstances involving H-1B petitions requesting a change of status. USCIS has never indicated whether the effect of the “Last Action Rule” is the same when the H-1B petition requests an extension of status.
H-1B Petitions Requesting an Extension of Status
When an H-1B petition requesting an extension of status is approved by the United States Citizenship and Immigration Services (“USCIS”), an I-94 is issued indicating the validity period of the foreign national’s admission into the U.S. For petitions requesting future start dates, the validity period does not automatically begin on the date the petition is approved but rather on the start date listed in the H-1B petition, which may be weeks into the future. If a foreign national is already in the U.S. in valid H-1B status, the foreign national may wish to travel internationally prior to the start date of the recently approved petition. This creates concern because each time a foreign national enters the U.S., the U.S. Customs and Border Protection (“CBP”) issues another I-94 indicating the validity period for the foreign national’s admission into the country. If the foreign national re-enters the U.S. prior to the start date of a recently approved petition, the I-94 will be issued with a validity period corresponding to the prior petition instead of the recently approved petition.
For example, assume a foreign national is in H-1B status valid until June 30, 2015. On May 15, 2015, the employer files a petition to extend the foreign national’s status for an additional three-year period. The H-1B petition is approved on May 30, 2015, and an I-94 is issued indicating a validity period from July 1, 2015 to June 30, 2018. The following week, the foreign national exits the U.S. to travel abroad and returns on June 21, 2015. At that point, the new H-1B petition has not yet taken effect, so CBP issues an I-94 corresponding to the validity period of the prior petition. The result is that the foreign national’s I-94 permits valid admission only until June 30, 2015. Once this occurs, the question becomes whether the foreign national’s “last action” is the effective date of the approved H-1B petition, or the admission into the U.S., such that the approved H-1B petition has been effectively abandoned.
Recommendations for Employers of Foreign Nationals in Nonimmigrant Status
USCIS has not provided guidance clarifying the effect of the “Last Action Rule” where an I-94 is issued prior to the effective date of an approved H-1B extension of status. Although the Efren Hernandez letter provides some insight, its application is limited to scenarios involving H-1B petitions requesting a change of status. For this reason, we recommend foreign nationals avoid international travel prior to the effective date of an approved H-1B petition requesting an extension of status. Otherwise, the foreign national risks abandoning the recently approved petition, which may necessitate additional travel abroad or even filing a new petition.