URGENT : Travel to India on L2 while H1B Query being Processed

[mank]

I travelled to US on L2 visa (Husband on L1A) and am working on L2 EAD. My L2 Visa expired in Dec 2014 but have valid L2 extension till Sept 2016. I work for Ohio State through a vendor(my employer). I applied for H1B through my employer and it was picked up in the lottery but unfortunately it received a query. My employer is in the process of responding to the same.

 

I have some personal emergency in the family and need to travel to India in the next couple of days (July first week). I would have to go for L2 visa stamping in India before I return to US by end of July.

 

Is it OK to travel now when my HiB query is under process. Would my H1 be abandoned if I travel now and return after getting my L2 stamped.....need urgent clarification on this please........Thanks for your help.

[jairichi]

You can travel and it will not affect H1B process. Your COS part of your H1B petition will be considered abandoned.

[mank]

Hi Jairichi......can you clarify on the statement "Your COS part of your H1B petition will be considered abandoned."........

[jairichi]

Hi Jairichi......can you clarify on the statement "Your COS part of your H1B petition will be considered abandoned."........

When your H1B employer files a H1B petition there is an option for consular processing or change of status. For consular processing you need to exit and enter US with a valid H1B visa and I797 to start working on H1B. But, for change of status no such stamping is required as you will automatically move to H1B status from 1st Oct. If applied as COS and you travel before approval then COS is considered abandoned. To work on H1B you will need to enter with a visa and I797.

[mank]

Thanks Jairichi for the details.

I'm confused now as my employer's attorney has categorically stated that " She should not be travelling outside USA while her H1 is still pending. Else, the pending petition may be considered as renowned and cancelled." I also cam across another post on similar case http://redbus2us.com/qa/31688/can-travel-india-and-back-when-applied-for-h1b-not-yet-approved

 

It looks like I have to cancel my trip........has anyone faced a similar situation?

[jairichi]

Thanks Jairichi for the details.

I'm confused now as my employer's attorney has categorically stated that " She should not be travelling outside USA while her H1 is still pending. Else, the pending petition may be considered as renowned and cancelled." I also cam across another post on similar case http://redbus2us.com/qa/31688/can-travel-india-and-back-when-applied-for-h1b-not-yet-approved

 

It looks like I have to cancel my trip........has anyone faced a similar situation?

Do not worry about that post as it is completely wrong. If your H1B is filed as change of status (COS) and if you travel before its approval then the COS is considered abandoned but your H1B petition will be processed as consular processing. In that case to move to H1B status after Oct 1st you will need to exit and enter US with a valid H1B visa and I797. 

 

A non-immigrant who travels abroad while an application for change of status to H-1B is pending has historically been considered to have abandoned the change of status portion of the petition.

• If the H-1B petition is later approved by the DHS and the individual is still abroad, he/she can apply for H-1B status at a U.S. consulate and then enter the U.S. in H-1B status.
• If an individual who departed the U.S. while an application for change to H-1B status was pending re-enters the U.S. in another non-immigrant category, he/she is not considered to be in H-1B status even if the DHS subsequently approves the change of status request that was pending at the time of the person’s departure.

In this case, the international would have to exit the U.S. with the approval notice, obtain an H-1B visa at a U.S. consulate office, and then re-enter the U.S., or have the employer file a new Form I-129 requesting a change of status once more. This may be difficult as the DHS may infer preconceived immigration intent on the part of the international.