The purpose of this memorandum is to describe the rules governing international travel while on H-1B visa status as well as the general process of applying for new and revalidated H-1B visas.
A foreign national who is in the United States in H-1B visa status with an employer is permitted to work with that employer and remain in the United States for the length of period of his approved status. His H-1B status is reflected on a Form I-94, Departure Record, which he receives either when he enters the United States and passes through Immigration Control or when his temporary visa status is either changed to H-1B (from, for instance, an F-1 student visa status) or extended (as for instance in the case of transferring to a new United States employer).
When, however, a foreign national leaves the United States (except in the case of a short trip to Canada or Mexico), he leaves behind his H-1B visa status. That status can only be regained when the foreign national is admitted back in to the United States at the end of his trip abroad. A foreign national is permitted to enter the United States only upon presentation at Immigration Control of a valid H-1B visa that is stamped in his Passport. Commonly, Immigration Control will grant the foreign national H-1B status for a period of time that is equal to the validity period of his H-1B visa.
A foreign national can get an H-1B visa stamped in his Passport only at a United States Consulate abroad.(i) In order to apply for an H-1B, the foreign national must show that she is the beneficiary of an approved H-1B Petition filed on her behalf by her sponsoring United States employer. The H-1B visa will customarily be granted with a validity date that is equal to the validity date of the approved H-1B Petition.
As noted above, there are two ways for a foreign national to apply for an H-1B visa: (i) traveling to the foreign national’s country of citizenship and applying at a United States Consulate there; and (ii) traveling to Canada or Mexico and applying at a United States Consulate there.
Regardless of the method of applying for an H-1B visa, the application itself will consist of the following materials:
In addition to these core documents, the applicant should have with her a photocopy of the H-1B Petition filing package for her current employer and if the foreign national’s spouse and children are applying for H-4 visas, then documentation must be submitted as part of their application to show family relationship to the sponsored H-1B employee (i.e., marriage certificate and in the case of children, birth certificates).
In the wake of the September 11th tragedy, the INS and the State Department have instituted a number of security checks and clearances that are resulting in significant delays in the processing of visa applications at Consulates abroad. All visa applicants must be screened against a database that contains a wide array of information from local and Federal law enforcement agencies, to prior immigration violations, to members of known terrorist organizations. While the initial screening process is fairly straight-forward and quick, if there is a “hit”, then the Consular Officer is required to refer the case for a formal investigation and further security clearance if necessary. Because the database contains numerous versions of the spelling of many names, and because of similar names in general, it is possible to generate a “hit” against the list that turns out to be for an individual other than the foreign national who is applying for the H-1B visa. Unfortunately, once a “hit” has registered against the database, the process of clearing the name can take literally months.
In addition to this general screening, those persons who are citizens of, or were born in, North Korea, Cuba, Libya, Sudan, Syria, Iran and Iraq (the “State 7” group) are subject to actual security clearances that are conducted by United States Federal law enforcement agencies. Note that a foreign national can be subject to this clearance process if he was born in one of the State 7 countries, even if he has become a citizen of another country. This clearance procedure will generally take several months to complete.
Finally, the citizens of a number of countries are also subject to special law enforcement security clearances before a visa can be issued. While the United States government has not revealed these countries, they are assumed to include Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates and Yemen. As in the case of the State 7 group, this security clearance procedure will generally take several months to complete.
Accordingly, given the uncertainty as to the outcome of security checks and clearances and the significant possibility that an erroneous “hit” can lead to literally months of delay at Consulates abroad, foreign nationals who can avoid traveling abroad to apply for their H-1B visas should do so. Those that must travel abroad should speak with immigration counsel in advance in order to make sure that they have all of the necessary materials and do not have any factors (such as for instance a prior arrest in the US even for a relatively minor violation) that could result in a security check “hit”.
With these general concepts as background, we will turn to answering specific questions:
Foreign national is in the United States in valid H-1B status, having changed his status from F-1 student status. He is the beneficiary of an approved H-1B Petition that is valid until December 31, 2006. He has no H-1B visa and wants to return home to visit his family.
In order to reenter the United States from his trip home, the foreign national must apply for an H-1B visa. His only two choices are to apply at a United States Consulate in his country of citizenship or through a special appointment process at a United States Consulate in Canada or Mexico. When he applies for his H-1B visa abroad, he will provide evidence of the approved H-1B Petition on his behalf and when the visa is granted it will be valid for the period of validity of the H-1B Petition, that is, until December 31, 2006. He can then use that H-1B visa to enter the United States from trips abroad anytime until December 31, 2006.
Foreign national is in the United States in valid H-1B status. He is working with his second H-1B employer and his current H-1B status is valid until December 31, 2006. He has an H-1B visa in his Passport that he obtained with his first employer that is valid until June 30, 2006. He now wants to return home to visit his family.
Even though the foreign national’s H-1B visa was obtained with his prior H-1B employer, it can still be used by the foreign national to return to the United States from his trip abroad. It can only be used, however, until the date of its expiration – June 30, 2006. If the foreign national enters the United States prior to June 30, 2006 and provides evidence of the approval of his current H-1B Petition to Immigration Control, then he will be granted H-1B status for the full period of his current H-1B Petition, that is, until December 31, 2006.
Foreign national is in the United States in valid H-1B status. He is working with his second H-1B employer and his current H-1B status is valid until December 31, 2006. He has an H-1B visa in his Passport that he obtained with his first employer that will expire within the next month. He now wants to return home to visit his family.
As noted above, if the foreign national wants to travel, he must get a new H-1B visa stamped in his Passport. He can do this either by applying for the H-1B visa at a United States Consulate when he returns home or by making an appointment to apply for an H-1B visa at a United States Consulate in Canada or Mexico.
If you have any questions concerning the H-1B visa application and revalidation process, please contact Donald W. Parker.
Footnotes
i. Please note that until July of 2004, a foreign national could also apply to revalidate certain categories of nonimmigrant visas, including the H-1B visa, by mail through the US Department of State. That procedure was eliminated in the wake of new biometric requirements at the time of applying for the visa.
ii. The list of countries, the nationals of which are not permitted to apply for their visas at United States Consulates in Canada and Mexico, is: Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates and Yemen.
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