Is there a problem if I travel outside USA while my H1-B is being filed in April 2015

[rishi99]

Hello,

I am not sure if my case is a unique case or not.
I have a situation with me.
I am currently in USA with L1-B visa from Company A. Its valid till July 2015.
I am getting my H1-B visa filed on April 1, 2015 with Company B.

My family had plans to go on vacation to India on March 25, 2015 and will be back on April 11, 2015.
and I was going to India on April 1, 2015 and would be back on April 11, 2015.

My Lawyer says that Neither me nor My family should leave USA during this period when they are filing my H1-B papers, since they feel that for COS (Change of Status), we should be present in USA whole time till I get approved for H1-B.

Can somebody validate this information ?

[me_shaan]

While its not mandatory, its more like a "good to have" desirable scenario. I guess your lawyer is just trying to ensure that you do not get into any hitch till CoS.

[raghvi]

As per USCIS a COS gets abandoned if a person travels outside US while the COS is pending. What this means is that though H1 petition itself can get approved but a Change Of Status from L1 to H1 in your case and L2 to H4 for your dependents would get denied.

And its logical too. On 01-April-2015 your employer would be petitioning for your H1, and requesting move from your status L1 to H1 with a start date of 01-Oct-2015. Now if you leave US, you technically dont have a status while outside US so no logic in USCIS approving a "Change Of Status" hence what USCIS does is approves the petition( based on petition merit) but denies the COS as you are not in Status. If COS is denied, as and when you return back to US, on L1 visa, you would need to refile a L1 to H1 COS and that would involve additional cost for your employer.

Few more things to remember, the earliest you can move to H1 is 01-Oct-2015. And if applying as COS, and it is approved, you must work and get paid by H1 employer from H1 start date.


This is my opinion not legal advice.