As we discussed in a previous post, filing an H-1B Cap petition as premium processing does not increase one's chances of having their petition selected in the random lottery. However, we did come across a situation today where premium processing could be beneficial for individuals with summer travel plans.
Here's the scenario: Let's say an individual is in the U.S. in F-1 or H-4 status and they plan to file an H-1B Cap petition as an in-country change of status. If their H-1B Cap petition is selected and ultimately approved, it will not be effective until October 1, 2008.
Now, under a longstanding concept in immigration law, if an individual travels outside the U.S. while a change of status petition is pending, their change of status request will be denied. For H-1B Cap change of status petitions, which are filed on April 1, adjudicated under normal processing sometime in the summer, and not effective until October 1, the question came up as to whether the individual could safely travel between April 1 and October 1. Last year, USCIS issued a memorandum that addressed this issue and stated that travel after the H-1B petition is approved, but before October 1 was permissible and would not result in a denial of a change of status request.
So, what does premium processing have to do with this? Well, let's say you plan to file an H-1B Cap petition on April 1, but you have plans to travel outside the country on May 15. In this situation, if the case is filed under normal processing, an approval would not likely be received by May 15, and travel outside the U.S. before obtaining the approval would result in denial of the change of status request, meaning the individual would need to go to their home country and obtain a new H-1B visa and reenter the U.S. after October 1 before their new H-1B status would become effecitve. But, if the case is filed as premium processing, it would likely be approved before May 15, and thus travel after that date would be permissible and not jeopardize the change of status request.
Monday, March 10, 2008
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5 comments:
This is interesting. I heard there's an issue traveling only when a Change of Status (COS) is pending. Is this true? If that's the case, can the H-1 application be kept separate from the COS. Basically the person in F status can travel abroad while H-1 is being approved (without COS being applied), return to US on F, hopefully by then H-1B is approved and then apply for COS to H from F. Can this be done and possibly avoid premium processing too this way?
By the way, great blog. Your postings are very informative.
"travel outside the U.S. before obtaining the approval would result in abandonment of the petition."
1.Does that refers to Abandonment of H1b petition or COS ??
2.Is there any way, The H1B can't be applied without COS, when the person is staying in US.
3.Is it advisable to travel out of the country before the results are out.. say sometime between April 20 and before may 20.
Thanks in advance.
An H-1B petition can be filed either as a petition only, or as a petition with a concurrent request to change status. An H-1B petition approval only requires that the beneficiary obtain an H-1B visa in their home country and reenter the U.S. after Oct. 1 before their new H-1B status will become effective. To avoid this, most individuals prefer to also request an change of status so that their status is automatically changed to H-1B once the petition is approved and becomes effective. That way, they do not have to hassle with getting an H-1B visa until the next time they have plans to leave the U.S.
Thanks for the information, When will be the approximate date for the Lottery results will be out and the approval results will be out?
USCIS has indicated they should have the random selection lottery completed within a couple weeks of April 1. Last year, however, it took several weeks.
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