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New information on H-1B travel

June 1, 2012

The H-1B is a frequently utilized temporary work visa for professional positions. For more information on the H-1B visa, see the Clark Hill website.

Individuals who hold H-1B status in the U.S. and wish to travel internationally frequently ask whether or not they need to apply for an H-1B visa or “stamping” at a U.S. consulate prior to their return to the U.S. The H-1B visa or “stamping” is the sticker that is placed inside a foreign nationals passport by a U.S. consulate outside of the U.S. and allows for entry into the U.S. The visa or “stamping” is different from the I-94 card that is issued at the time a foreign national enters the U.S. and governs how long that person can stay in the U.S. and what status they will hold (i.e. H-1B). An I-94 card can be extended while a person is in the U.S. through an application made directly to USCIS and the I-94 card extension will be granted on a Form I-797 with a new I-94 card on the bottom of the form.   
In general, individuals who hold H-1B status require an H-1B visa or “stamping” to make an entry into the U.S., unless they are Canadian citizens and exempt from visa stamping. However, if an H-1B employee has transferred employers, has a new I-797 H-1B approval from the current employer, and has an H-1B visa obtained with a prior employer that has not yet expired, the H-1B worker can use their existing H-1B visa to enter the U.S. without applying for a new visa at a U.S. consulate abroad, by using their existing visa and their H-1B approval notice from their new employer. This provision is specifically permitted by the Department of State’s Foreign Affairs Manual at 9 FAM 41.53 N8.4-3, Validity of H-1B When There is a Change of Employer, which provides the following instructions:
a. After changing H-1B employers in accordance with DHS procedures for making such a change, an H-1B visa holder may continue to use his or her original H-1B visa for entry into the United States. Upon applying for entry, the visa holder must present the new Form I-797, Notice of Action, evidencing the approval of the change of employer in addition to the visa.
Furthermore, H-1B employees also can travel while their current employer’s H-1B petition remains pending, if the prior H-1B visa remains valid. This is specifically permitted by the Department of State’s Foreign Affairs Manual, 9 FAM 41.53 N8.4-2, H-1B Aliens May Travel Abroad While Change of Employer Pending, which provides the following instructions:
H-1B aliens traveling abroad during the period when their new employment petition is pending may use their old petition and visa for return to the United States provided the applicant:
(1) Is otherwise admissible;
(2) Has a valid passport and visa (whether new or the original visa with the prior employer’s name);
(3) Has the prior Form I-94, Arrival and Departure Record, a Form I-797, Notice of Action, or a copy of, showing the original petition’s validity dates; and
(4) Has a dated filing receipt or other evidence that a new petition was filed in a timely fashion.

If you have a question about visas or anything else legal-related, use SBAM’s Ask An Expert service free of charge!

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