If you’re on an H-1B visa and considering a job change, understanding the implications for international travel during the transfer process is crucial. This article provides a detailed overview of whether you can travel when your H1B transfer is pending and the necessary steps to take.
When changing employers while on an H-1B visa, your new employer must initiate an H-1B transfer. This involves obtaining a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) and subsequently submitting Form I-129 to the U.S. Citizenship and Immigration Services (USCIS) to request a change of employer.
The critical question is: Can you travel while this transfer is in progress? Let’s break down the rules and best practices.
1. Traveling Outside the US While H1B Transfer Is Pending
The good news is that it’s generally possible to travel outside the US while your H1B transfer petition is pending with USCIS.
According to the Foreign Affairs Manual (9 FAM 402.10-11(A)), you can travel using your valid H-1B visa from your previous employer while the transfer is pending, provided you can demonstrate that the H-1B transfer petition was filed on your behalf in a timely manner.
To ensure a smooth re-entry into the United States, you must have the following documents:
- Valid Passport: Your passport must be valid for the duration of your stay in the US.
- Valid H-1B Visa: This should be the visa obtained from your previous employer.
- Proof of Previous H-1B Status: Include a copy of your previous Form I-94 and USCIS I-797 Approval Notices, which demonstrate your H-1B status and the validity dates of your previous petition.
- Proof of Transfer Petition: Carry the Receipt Notice from USCIS (Form I-797) for your new H-1B transfer petition, indicating that the petition was filed on time.
H-1B portability rules allow you to travel and re-enter the US with your new employer’s USCIS filing notice (Form I-797).
However, traveling while your H-1B transfer is pending at USCIS does come with potential risks. If Customs and Border Protection (CBP) officers cannot verify your transfer petition during your re-entry, you might experience delays. Additionally, if your H-1B visa and petition have expired, you cannot obtain a new H-1B visa while the transfer petition is pending. A new H-1B visa for your new employer can only be issued if USCIS approves the pending transfer petition.
If USCIS denies your transfer petition while you are abroad, you will not be able to obtain a new H-1B visa or re-enter the United States in H-1B status to work for your new employer.
2. Traveling After H1B Transfer Is Approved
Once USCIS approves your H1B transfer to the new employer, you can travel using your existing valid H-1B visa. When you travel after the H1B transfer is approved, you must present evidence of the approved change of employer petition along with your current H-1B visa.
Upon re-entering the United States, you must present the following documents:
- Valid H-1B visa from your previous employer.
- New Form I-797 Approval Notice for your H-1B transfer to the new employer.
Both documents must be presented to US Customs and Border Protection (CBP) officials upon arrival in the United States.
However, if your H-1B visa from your previous employer has expired, you will need to obtain a new H-1B visa from a US consulate abroad before returning to the United States. This is because the visa stamp in your passport must be valid for re-entry, regardless of the approved H1B transfer.
Key Considerations for Travel During H1B Transfer
- LCA Approval: Remember that you cannot travel while your H1B transfer is pending at the Department of Labor (DOL) for the Labor Condition Application (LCA). Travel is only advisable once the LCA is certified and the I-129 petition is filed with USCIS.
- Visa Validity: Ensure your visa is valid. If it’s expired, you’ll need to get a new one.
- Documentation: Always carry all necessary documents, including your passport, visa, I-94, and approval notices.
- USCIS Processing Times: Be aware of current USCIS processing times, as delays could affect your travel plans.
Seeking Legal Assistance
Navigating the complexities of H1B transfers and international travel can be challenging. If you plan to change employers or need to travel during your H1B transfer, it is highly recommended to consult with an experienced immigration attorney. They can assess your situation, provide tailored advice, and help you avoid potential issues.
An attorney can guide you on the best course of action, especially if your situation involves potential complications. They can also represent you if issues arise during your re-entry to the United States.
Disclaimer: This article provides general information and should not be considered legal advice. Consult with an immigration attorney for advice specific to your situation.
