travelling to INDIA during H1 Transfer

[bombay247]

I am working for Emp A and got transfered to Emp B last week. I would be going to INDIA this week.

I have the Fed Ex receipt that USCIS has received my application and a proof that the cheque got cleared...

Is it safe to travel without original I-797 of Emp B...
and what precautions/documents would I have to take...

Thanks!

[DMX17]

You can travel. But, when you come back, you need to have the Employer B I-797 approval notice. So if you leave now, you will have to wait till you get the I-797 sent to you while you are in India. Without the new I-797, you may not enter.

[bombay247]

thanks DMX...appreciate your reply.
So, do we have to get a new Visa (for Emp B) before we come to US or can the old Visa Stamp (for Emp A) in passport suffice?

Thaanks!

[DMX17]

thanks DMX...appreciate your reply.
So, do we have to get a new Visa (for Emp B) before we come to US or can the old Visa Stamp (for Emp A) in passport suffice?

Thaanks!

You need the new employer B I-797 before you enter since upon retun you will be joining/continuing employer B and NOT employer A whose I-797 cannot be used in your situtation.

[DMX17]

Well, I did some more reading on the subject. It looks like you may enter on a pending petition under AC21 if you have proof that a timely petition has been filed for your transfer and have had H1 status in the past and the previous H1 approval notice is still valid (not expired). You need a copy of the H1 I-94, Employer A approval notice, Notice of Action (I-797C) for the transfer. I assume that you are otherwise admissible (not engaged in fraud etc).

Search "AC21 H1 Travel" on google or look here:

https://www.immihelp.com/procedure-for-admission-at-port-of-entry-h1b-visa-portability/

I hope I am not missing anything here.

[txh1b]

I hope I am not missing anything here.

Problem with this approach would be the validity of I-94. I-94 would be given only until the visa expiration date. The user has to either leave the country if the expiration is date is close and wait outside US for the approval to re-enter upon approval.

If the petition gets approved after the user travels back, as travel voids EOS (due to new I-94), the H1b holder has to either file another extension to extend the I-94 or travel and re-enter to get I-94 for a longer period upon approval.

It just complicates things and not a recommended approach by many immigration lawyers.

[DMX17]

If the petition gets approved after the user travels back, as travel voids EOS (due to new I-94), the H1b holder has to either file another extension to extend the I-94 or travel and re-enter to get I-94 for a longer period upon approval.
.

I see the issue when EOS (transfer) is approved while OP is outside U.S and OP does not have the Employer B I-797 at the time of re-entry.

Although I wouldn't do it...

If the Extension (transfer with Emploer B) is approved after the OP re-enters the U.S. using the AC21 provisions as described in the link, then the latest I-94 (which would be the one that comes with the Employer B new approval notice) would govern the validity period and the OP just gets an extended I-94. In this case, OP is safe and does not need to do anything. Correct? The I-94 number, however, would be the same as the one that was turned in while leaving the U.S.

Here I go again with I-94 number confusion...

Travel abandons COS but not EOS, right?

[txh1b]

Travel and re-entry is not a problem with AC21. What happens to the I-94 validity is iffy here and I don't think we can apply the Efren Hernandez memo interpretation from AOS to such EOS cases.

Practical experience reported from the users of EH memo, the latest I-94 one gets at POE automatically changes the status on the same I-94 number. This was reported by users that went to local USCIS office to get an I-94 issued with the same number as the latest one obtained at POE showing a different status. They never mentioned about the expiry date on the I-94 issued by USCIS.

In case of an EOS, I would doubt if USCIS would extend the I-94 date on the new I-94 # obtained as a result of travel after one gets the approval indicating the old I-94 # for a longer duration with the I797.

The old I-94 which had the departure record closed, is not valid according to my interpretation. The life of an I-94 # ends once it has been returned during departure.

I will shut up now.

OP has posted his query on "other" forums as well and may be he will get an expert opinion there. In either case, s/he needs to be worried about the I-94 validity.

[DMX17]

OP has posted his query on "other" forums as well and may be he will get an expert opinion there. In either case, s/he needs to be worried about the I-94 validity.

Oh okay. We'll see what "that" brings. Experts on "that" had a real advantage because of my presence, you know. I have been known to ask intelligent and invovled questions that bring out the best in experts.

Uhem.

[txh1b]

Oh okay. We'll see what "that" brings. Experts on "that" had a real advantage because of my presence, you know. I have been known to ask intelligent and invovled questions that bring out the best in experts.

Uhem.

But experts tend to beat around the bush with tricky questions like these or tend to ignore if they cannot provide a better answer.

[DMX17]

In case of an EOS, I would doubt if USCIS would extend the I-94 date on the new I-94 # obtained as a result of travel after one gets the approval indicating the old I-94 # for a longer duration with the I797.

The old I-94 which had the departure record closed, is not valid according to my interpretation. The life of an I-94 # ends once it has been returned during departure.

Don't shut up just yet. Let's explore more !

Even if the old I-94 dies upon return when one leaves the U.S. on a pending H1 transfer, a new I-94 takes birth (a clone) at the time of H1 approval after this person returns before approval. Based on last action rule, this I-94 prevails. Does not matter if it is the same number.

Cloning is good in this respect.

Read the UDnjsem of that site. There is an example there.

[txh1b]

It still is unclear to me. May be I need to look up Thomas Cook memo. What is the latest I-94 in this context, the one from approved I797 or the one obtained from POE?

[DMX17]

It still is unclear to me. May be I need to look up Thomas Cook memo. What is the latest I-94 in this context, the one from approved I797 or the one obtained from POE?

The one that comes with the new employer B I-797. I assume that this happens after the person is already back in the U.S with a different I-94 number.

[txh1b]

The one that comes with the new employer B I-797. I assume that this happens after the person is already back in the U.S with a different I-94 number.

Found the official memo. Posting it for the curious minds.

http://www.uscis.gov/files/pressrelease/Travpub.pdf

Looks like the cloning is right!