A Foreign National who already holds the H-1B status is not prohibited from traveling abroad while an extension is pending with US Citizenship and Immigration Services, provided he or she returns to the United States prior to the expiration of the current H-1B approval.
A non-immigrant who travels abroad while an application for change of status to H-1B is pending has historically been considered to have abandoned the change of status portion.
If the H-1B petition is later approved by USCIS, and the foreign national is still abroad, he or she can apply for an H-1B visa at a U.S. consulate and then enter the United States in H-1B status.
Portability of H-1B Status
To qualify for H-1B “portability” employment, the nonimmigrant must:
- Have been previously granted an H-1B visa
- Have been lawfully admitted into the United States as a nonimmigrant:
- Not have engaged in employment without authorization since that
- be the beneficiary of a non-frivolous I-129 petition for new H-1B employment filed with USCIS before the expiration of the non-immigrant’s current period of authorized stay.
No Grace Period for H Status
There is no official “grace period” for foreign nationals in H status after their period of authorized stay ends, or after their employment terminates.
The USCIS position is that when the H-1B employment relationship is terminated (either by the employee or by the employer) the H-1B technically falls “out of status” and can be removed from the United States.