H1B Extension - Visit India

[pat]

Hello Community,

My current visa is going to expire on September 2012,

My employer is going to start normal process (not premium) for h1b extension by June 15th, 2012

Once my process starts can I visit Indian in July 2012 for 2 weeks?

If yes, is there anything I need to be careful during process for extension or at the time of coming back to USA?

Thanks

[livliv]

No, you should not travel while the extension is pending.

Either travel before filing or after approval.

[wiweq]

"Once my process starts can I visit Indian in July 2012 for 2 weeks?"

=> You can visit India anytime; if you are Indian you don't require and visa:)

But if you are concerned about coming back to USA you will be on risk.

If your H1b is under processing (not approved) and you leave USA, your extension won't approve. For successful extension/ COS you need to be PRESENT in USA on valid status. Means, your new I797 won't have attached I94. You would need to stay in India until the H1b approves with no extension. Get the new I797, use it at POE and get the I94.

Best bet: Pay for PP, let the H1b approve before your visit.

[testvisauser]

One can travel while the extension is pending. The only time you cannot travel is when a Change of Status (COS) petition is pending and also in some cases when AOS is pending (don't want to get into that).

In the Pat's case, since he/she will be back before the approval comes in, OP will have a new I-94 at the port of entry different from the one that was submitted for extension. When the extension goes through successfully, the I-94 will be received with the same number as the previous I-94 but with new date of validity. For all intents and purposes, the last I-94 received will be the current valid I-94 (for status, renewing Driver License etc).

Pat, if you are confused by these conflicting opinions, contact your attorney I have personally traveled twice during pending extensions at major companies after consulting with the attorneys.

[livliv]

One can travel while the extension is pending. The only time you cannot travel is when a Change of Status (COS) petition is pending and also in some cases when AOS is pending (don't want to get into that).

In the Pat's case, since he/she will be back before the approval comes in, OP will have a new I-94 at the port of entry different from the one that was submitted for extension. When the extension goes through successfully, the I-94 will be received with the same number as the previous I-94 but with new date of validity. For all intents and purposes, the last I-94 received will be the current valid I-94 (for status, renewing Driver License etc).

Pat, if you are confused by these conflicting opinions, contact your attorney I have personally traveled twice during pending extensions at major companies after consulting with the attorneys.

It is fine if it goes like you stated above. But if extension is processed at the time the person is outside the US, USCIS officer may see it as extension of status abandoned and deny that part of the petition. (Approve without I-94). It is best to avoid all confusion by traveling (or at least returning) after approval.

[testvisauser]

There is no concept of abandonment of an Extension of Stay petition as far as I know and it is well known that this is a gray area. Maybe an attorney can clarify this as we can keep going back and forth over this.

[wiweq]

". (Approve without I-94)."

=> That won't be a problem if OP stays outside of USA till the H1b approved. S/he can get the new I94 based on new I797.

[wiweq]

"There is no concept of abandonment of an Extension of Stay petition as far as I know and it is well known that this is a gray area. Maybe an attorney can clarify this as we can keep going back and forth over this."

=> Read this closely: http://www.murthy.com/2012/05/25/h1b-transition-issues-international-travel/

Though it talks about F1 to H1b COS, but the same applies for H1b extension too. Murthy attorneys have also supported the same fact time to time.

[livliv]

". (Approve without I-94)."

=> That won't be a problem if OP stays outside of USA till the H1b approved. S/he can get the new I94 based on new I797.

Yes, but OP will have to apply for H1B Visa to return in that case.

[sumobom4]

"There is no concept of abandonment of an Extension of Stay petition as far as I know and it is well known that this is a gray area. Maybe an attorney can clarify this as we can keep going back and forth over this."

=> Read this closely: http://www.murthy.com/2012/05/25/h1b-transition-issues-international-travel/

Though it talks about F1 to H1b COS, but the same applies for H1b extension too. Murthy attorneys have also supported the same fact time to time.

Wiweq,

 

The abandonment of application applies to COS cases. Extension of the same status is different. You need to be on US soil at the time of ACCEPTANCE of the extension application. After that, it's only a case of which I-94 is the latest one, based on Last Action Rule.