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发信人: farmlane (GLAmao), 信区: Visa
标 题: Re: F-1签证未过期，今年的H-1申请approved了，若出境，需要重新申
发信站: BBS 未名空间站 (Tue May 19 14:31:42 2009)
Travel after Change-of-Status Approval with Future Start Date
Posted May 06, 2005
©MurthyDotCom
The USCIS has clarified the issue regarding the continued validity of a
previously filed and approved change-of-status petition with a future start
date, when a person travels abroad after such approval but seeks to enter on
a prior status.
©MurthyDotCom
This clarification is useful as many employers have, since April 1, 2005,
filed H1B petitions reflecting future start dates under the FY2006 H1B quota
; effective from October 1, 2005 in many instances. Although most lawyers
advise their clients against international travel after filing petitions
with changes of status, recent clarification from the USCIS may help
individuals to travel more freely than before, without jeopardizing the
previously-approved petition and change of status effective with a future
start date.
©MurthyDotCom
How Does the Last-Action Rule Apply During International Travel?
©MurthyDotCom
The basic question posed was, "What happens if the USCIS has approved a
person's status and petition with a future start date and, thereafter, the
person travels outside of the United States, reentering in the present (
unchanged) status prior to the future start date?" We know that, for a
person who has obtained, for example, an H1B petition approval with a change
of status and who remains in the U.S. until the H1B start date, that person
's status would change as of the date listed on the H1B approval notice. So,
the question is whether the intervening international travel changes the
equation under the "last-action rule" where the last action of the USCIS
governs one's status.
©MurthyDotCom
The USCIS responded that the travel does not change the equation. The USCIS,
through Efren Hernandez, Chief, Business and Trade Services Branch,
reasoned that the last action would not be the travel and reentry in the
prior status, but the previously-approved petition and change of status with
a future start date. The travel does not invalidate the previously-approved
USCIS change of status effective from a future date. This is because the
last action regarding the person's status governs.
©MurthyDotCom
Example - Filing a COS from F-1 to H1B with Future Start Date
©MurthyDotCom
The question posed to the USCIS assumes that a person is in F-1 status and
an employer is filing for a change of status to H1B with a start date six
months after the time of filing. So, on April 1, 2005, the employer files
for an H1B with an October 1, 2005 start date. Premium processing is used,
so the case is approved on May 1, 2005, with a change of status from F-1 to
H1B. The I-94 reflecting the change of status is attached to the approval
notice. The person's F-1 (presumably Optional Practical Training) is valid,
so s/he decides to travel outside the U.S. after May 1, 2005, returning to
the U.S. on the F-1 on September 1, 2005, one month prior to the H1B start
date of October 1, 2005.
©MurthyDotCom
So, the question posed is whether, after the international travel, the
previously-approved change of status from F-1 to H1B, with an effective date
from October 1, 2005, is still valid, or is the last action of the USCIS
considered to be the F-1 stamp made on I-94 card at the U.S. port of entry
on September 1, 2005.
©MurthyDotCom
USCIS Reasoning of "Later in Time" Governs
©MurthyDotCom
The USCIS stated that the change of status would automatically take effect
on the effective date of the H1B petition / change-of-status Notice of
Action of October 1, 2005, in this example. The intervening admission to the
U.S. does not override this later effective date. The "last action" rule
does not change this fact because the last action that has been taken is the
effective date of the H1B petition and change of status approval. Although
the I-94 card reflecting the H1B change predates the latest I-94 card given
at the Port of Entry, the change of status to H1B does not become effective
until October 1, 2005, after the person's entry into the United States.
©MurthyDotCom
USCIS Letter Guidance Helpful but Not Legally Binding
©MurthyDotCom
This analysis was provided by the USCIS in the form of letter guidance. Such
guidance does not carry the binding force of law or regulation and
generally is given less weight than even a USCIS policy memo. In the absence
of any other USCIS guidance, however, it is a useful resource that is
available and the only option for a person who needs to travel abroad under
such circumstances. We also find that the USCIS and Legacy INS have given
considerable weight to such guidance letters and enforced them. Many complex
issues of U.S. immigration law have only such letters as this on which
people can rely on in the absence of law or regulations.
©MurthyDotCom
Distinguish from Travel While Change of Status Pending
©MurthyDotCom
This guidance should not be confused with the rule that a person who travels
abroad and attempts to reenter the United States while a change of status
is pending abandons the request for the change of status. In the question
posed, the petition and the change of status had been approved before the
person departed the U.S. While the example used was a change from F-1 to H1B
, there are other scenarios in which the same logic presumably could apply.
©MurthyDotCom
Conclusion
©MurthyDotCom
This Hernandez letter is another helpful clarification on an issue that was
previously not entirely clear. The conclusion is logical and it avoids the
need for employers or individuals to make additional, extraneous filings or
the need to travel abroad again to get back into legal status.
【 在 GTFAJob (如果的是) 的大作中提到: 】
: 我10月份毕业。现在的F-1 visa还没有过期，想这个暑假，毕业前去欧洲玩。可是
: H-1的申请已经被approved了，10月份生效。这种情况如果出境的话，需要重新申请新
: 的签证才能回来么？
: 在H-1 approval notice上写着：“A person granted a change of status who
: leaves the U.S must normally obtain a visa in the new classification
before
: returning”。这意思似乎是说我需要重新申请签证吧。。。
: 大家帮我看看，我理解得对么？
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