H1B - Change of Employer Pending, can I leave the US

[iainthomson85]

Hi There,

I have had a mixed bag of answers on this one so I'm wondering if someone could clarify:

I worked for employer A on an H1B. I then filed for adjustment to work for employer B, I received my case receipt and then started working for Employer B. I am due to go home (UK) for Christmas on Friday but my transfer has still not come through, can I leave the country and get back in ok with only the receipt notice? I know a friend of mine who was in the same situation and he got back in without a problem but he has no left again since so I'm still not taking that as the golden rule on the subject.

What is the ruling on this or is it a bit of a grey area?

Thanks, Iain

[iainthomson85]

(I have pay stubs from both employers and a copy of both petitions).

[kabkaba]

It is not advisable to travel. If you do, it is possible that the new employer's petition will be approved without an I-94 and you will not be able to work for them without leaving and entering again. It would have been better to upgrade to premium earlier, but considering the time left that is not possible.

[iainthomson85]

Thanks for the reply kabkaba, just to clarify, when it comes to reentry, if the via approval has not gone through I may be admitted but without an I94, I will then have to wait for the proper receipt notice and THEN leave and come back before I can work again?

[kabkaba]

For re-entry, you have to show the approval notice corresponding to the employer who you wish to work for. Since you have already joined the new employer, you have to show their approval notice which you will not have if that is still pending. When are you planning to return?

[iainthomson85]

December 30th, I am only going home for a week. If it turns up while I am gone I will get my work to overnight me it...but I fear with the holidays rapidly approaching, I wont get the notice until the new year.

I live in Boston so going up to Canada and back isn't too much trouble, I just need to make sure they physically will let me back in and it wont abandon my H1B transfer.

I got my receipt notice 13th October so the approval must be close, vermont service center showed a 6 week average wait.

[kabkaba]

You cannot return without an approved petition. It may work, but there could be complications later, in extensions and green card process. Consult an experienced lawyer.

[iainthomson85]

Ok thanks, I shall do just that. The last thing I want to do is screw up my visa for a 1 week trip home! Thanks for the advice.

[iainthomson85]

Phoned the service center and they said it would be fine, so long as my I94 was valid and I didnt change companies until the receipt notice arrived then I wont have a problem.

[shervin143]

This is definetely a risk that you are taking. It totally depends on the officer at the POE. In most cases they won't let you in without a valid approval notice associated to the employer who you will be working in U.S. If you decide to still go ahead and do try this, do let us know what happens on your return.

Phoned the service center and they said it would be fine, so long as my I94 was valid and I didnt change companies until the receipt notice arrived then I wont have a problem.

[iainthomson85]

Will do, I will be bricking it on the flight back!. Can I enter on the visa waiver if they wont let me in on my H1B?

[iainthomson85]

Got back in without a hitch, I dare say my charming scottish accent and a nice 40 year old female officer may have played a larger part in my reentry than my H1b validity, but its all fine anyway. I just showed old approval, current receipt and a letter from my new employer saying that I worked for them since XX this year.

Thanks for the help, I hope there will be no problems down the line that arise from all this!

[shervin143]

Thanks for sharing your experience. It will be helpful for others who are in a similar situation. I guess the I-94 was issued until the old petition expiry date.

Got back in without a hitch, I dare say my charming scottish accent and a nice 40 year old female officer may have played a larger part in my reentry than my H1b validity, but its all fine anyway. I just showed old approval, current receipt and a letter from my new employer saying that I worked for them since XX this year.

Thanks for the help, I hope there will be no problems down the line that arise from all this!

[iainthomson85]

Yeah the I94 I got the other day expires when my old petition does (and my new one as I didn't file for an extension).