Travel while H-1B extension is pending

Question

I currently have a H-1B visa which is due to expire in March 2022. My H-1B extension was submitted in June and is currently under review. I will soon be going on work-related travel for a number of weeks and plan to re-enter the US using my current visa.

• What happens if my H-1B extension is approved while I am outside the US? If that happens, should I return to the US before the start date of the extension? Or should I try to get a visa stamp for the extension while I am away?
• Will the H-1B extension begin from near the expiration date or will it start sooner?

Answer 1

The "extension" that your company applied for is an extension of the H1b petition, plus a request for H1b Extension of Stay (i.e. to extend your status).

If you leave the US while it is pending, the petition extension will continue to be processed (you don't need to be in the US to be petitioned for H1b), but the Extension of Stay application will be automatically abandoned (since you only have status while in the US, so there is no status to extend if you have left the US).

The next time you enter the US, you will be admitted to a new status based on your visa. If you enter on your H1b visa, how long you will be admitted for depends on the H1b petition that you present. If at that time, your new H1b petition has been approved and you show a copy of this approval when you enter, you should be admitted until the expiration of the new H1b petition (unless your passport expires sooner). There is no need to get a new visa, as long as you enter before or on the expiration date of the visa.

However, if the new H1b petition has not been approved, you will only be admitted until the expiration of your current H1b petition. Then, even if the new H1b petition is later approved, your status won't be extended. You would have to either leave and re-enter the US to be admitted until the expiration of the new petition, or your company would have to file another extension for you, requesting Extension of Stay again.

Answer 2

If you travel while an extension of stay application is pending, it will not be considered abandoned. If you travel while a change of status application is pending, it will be considered abandoned. Your case is an extension. Therefore, USCIS will continue to process the extension of stay even after you leave the US. There are three possibilities:

1. You return to the US while the extension is still pending. This means you will have to use your old petition in order to apply for admission, and CBP will grant you admission only until the expiration date of the old petition or until your passport expires, whichever is earlier. (If the old petition has already expired, you will not be able to use it to re-enter the US.) Later, the extension may be approved or denied; the effect of this will be the same as if you had never travelled.

2. The extension is approved while you are abroad. You may use the approval notice to (a) apply for a new visa with longer validity, if required, and (b) travel to the US and be admitted either until the expiration date of the extended petition, until your passport expires, or for a period of 3 years (whichever is shortest). Be careful to check your I-94 after admission to know when your status will expire.

3. The extension is denied while you are abroad. You will still be able to travel back to the US using your old petition, provided that it has not expired (and that your visa, if required, is still valid.)