H1B pending期间可以离开美国吗？要是必须回国怎么办？相信这是很多朋友面临的问题。
随着Trump收紧移民政策。H1B的审批越来越紧，也越来越慢。相信很多人等的花儿都谢了，还迟迟不见结果。等了很久却登录RFE(requirement of further evidenve)的人也不在少数。拿到H1B的若是换工作，又是一个漫长的H1B transfer的等待。申请H1B extention 或者H1B申请绿卡，又双是一个漫长的等待。那么在H1B pending期间，如果你需要出境旅行、出差或者回国见家人，这该怎么办？相信这是很多朋友面临的问题。
到底风险点在哪里？当H1B还在pending期间，什么情况出境是安全的？什么情况下对签证审批会有负面的影响？下面就分类讨论。
名词解释
- H1B Petition Pending: 申请H1B签证的材料已递交，等待审批结果
- H1B Extension of Stay：申请H1B延期。H-1B首次获签的在美国居留时限是三年，三年期满后还可以申请延期再续三年。同一雇主。
- H1B Amendment：H1B变更，例如雇主变更持H1B工作签证雇员的工作地点，或者雇佣条款出现其它重大改变时，需提交amendment。同一雇主。
- H1B Change of Employer：换工作，变更雇主
- H1B Petition Is Adjudicated：H1B签证申请被判决，即出现一个通过或不通过的结果。
- Change of Status：变更合法身份，比如从F签证变成H
A. Travel On H1B While An H1B Petition Is Pending
Foreign nationals in H1B status can travel outside the US and re-enter the United States as long as they have a valid H1B nonimmigrant visa stamp in their passport. Let’s examine the nuances of travel on H1B when an H1B petition is pending.
NOTE: It’s always safe to travel after H1B approval.
只要护照上的H1B visa stamp在有效期内，即可顺利入境。凭H1B approval可去大使馆申请visa stamp。
1. Travel on H1B While H1B Extension of Stay or H1B Amendment Is Pending With The Same Employer
If an H1B petition to extend and/or amend H1B status with the same employer is pending with U.S. Citizenship & Immigration Services (USCIS), the H1B employee may be able to travel on H1B if:
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a.He/she is traveling on an unexpired H1B visa 签证未过期
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b.He/she is going to return to the US before the expiration of the current H1B approval notice. 入境美国时仍然在签证有效期内
Simply put, if the individual’s original H1B status has not expired, then H1B travel outside the US is generally allowed.
举个例子，小明的H1B approval于9月1日到期，在9月1日前，满足条件a，他申请了H1B的extension，那么在 pending期间，小明可以出境，满足条件b只要在9月1日之前回到美国即可。
2. Travel Outside The US When Beneficiary Does Not Have A Valid H1B Visa
- If an H1B extension of stay petition has been filed and the employee does not have a valid H1B visa, he/she will be able to get an H1B visa stamp if travel abroad is undertaken and the underlying H1B petition is still valid.
- If an H1B Amendment petition has been filed and the employee has already begun working pursuant to the terms of the amended petition, the employee cannot seek to obtain a new visa stamp until the amendment is approved. Travelling outside the US in this scenario is not recommended.
3. Travelling Outside The US While An H1B Change of Employer Petition Is Pending
If an H1B petition is filed for a Change of Employer and the H1B employee begins working for the new employer under AC21 H1B Portability, the H1B employee may be able to travel on H1B while the petition is pending if: 若签证未approval，但已经开始在新雇主公司工作。
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a.He/she is traveling on an unexpired H1B visa;
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b.He/she was previously lawfully admitted and has maintained their H1B status; and
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c.He/she is carrying the H1B Receipt Notice (I-797, Notice of Action) for the Change of Employer petition.
举例，小明之前在abc公司工作，拿到了H1B后回国，1月份办理了H1B visa stamp，有效期一年。后来换工作，提交H1B transfer申请后，拿到receipt notice，开始在xyz公司工作，可以回国，无需再去大使馆。入境时，凭护照上未过期的写着abc公司的H1B visa stamp，以及xyz公司的I-797 receipt notice，即可入境。
The H1B employee cannot travel outside the US, however, if he/she does not already have a valid H1B visa stamp in the passport. If the H1B employee travels out of the US and does not already have a valid visa stamp in the passport, he/she will need to wait for the H1B approval and then obtain the H1B visa stamp before being able to re-enter the US.
若小明在xyz公司上班，护照上abc公司的H1B visa stamp已过期。则无法出境，必须等到xyz H1B approval之后，回国带去大使馆办理了新的写着xyz公司的visa stamp可以入境。
If an H1B Change of Employer petition is pending but the employee has decided to remain with his or her current employer, then travel outside the US is not an issue as long as the employee has a valid H1B approval notice and H1B visa stamp (or can obtain one before re-entering).
若小明在abc公司上班，找到了xyz公司的工作，提交了H1B transfer的申请，但继续留在abc工作，那么此期间出入境不是问题，因为有有效的H1B approval和有效的visa stamp。
4. H1B Petition Is Adjudicated While The Employee Is Travelling Outside The US
If the H1B Extension of Stay petition or Change of Employer petition is adjudicated while the H1B employee is outside the US, he/she has several options:
当雇员离开美国，境外期间，收到移民局的处理结果，分情况讨论：
4.1 H1B Petition Is Approved
If the H1B Extension of Stay petition or Change of Employer petition is approved 延期或更换雇主申请被批准
a.If the H1B employee can obtain the new approval notice and has a valid H1B visa stamp in the passport, the employee can present the new H1B approval notice and the previously issued H1B visa stamp at the Port of Entry. CBP should admit the H1B employee for the full validity of the newly approved H1B petition.
若雇员护照上的visa stamp未过期，那么拿着新的approval notice，即可入境。入关工作人员应该按照新批准的approval notice登记入境，也就是说I-94的有效期会更新至approval notice上面显示的新日期。
b.If the H1B employee enters the US without the new H1B petition approval notice, CBP will admit the employee based on the previously issued H1B approval notice and H1B visa, which will have a shorter expiration date than the newly approved petition. The employee must leave and re-enter with the new approval notice (and possibly need to obtain a new H1B visa stamp if the previously issued visa is no longer valid) or the employer must file a new extension of stay petition to extend the employee’s I-94.
若雇员没有带新的approval notice入境，那么入关工作人员仍然按之前的H1B信息登记入境，那么I-94的有效期跟新的approval日期不一样，更短一些，那么之后雇员需要离境并用新的approval重新入境一次，来更新I94上的有效期。
4.2 H1B Petition Is Denied|
If the H1B Extension of Stay is denied while the employee is outside the US, he/she should still be able to re-enter the US based on the still valid, previously issued approval notice and visa.
若申请extension并离境，离境期间收到拒信，那么仍然可以用未过期的visa入境。
If an H1B Change of Employer petition is denied while the employee is travelling outside the US, the employee will not be able to return to the US if he/she has availed themselves of H1B portability.
若申请变更雇主期间离境，且雇员已经开始在新雇主公司工作，那么离境期间收到拒信，被拒意味着无法入境了。
举个例子：
Elizabeth is in the US in H1B status. She is working for XYZ, Inc. Her H1B status expires in 2 months and her employer has already filed an H1B Extension of Stay on her behalf. Elizabeth needs to go out of the country on urgent business. She has a valid H1B visa stamp in her passport. Can she travel outside the US?
Yes, Elizabeth will be able to travel on H1B visa and re-enter the US with the previously issued H1B visa stamp and H1B approval notice. Once she re-enters and after the H1B petition is approved, her status will be extended. If the H1B extension of stay petition is approved while she is abroad, her employer should send her the approval notice. She can then use the new approval notice and existing visa stamp to re-enter the U.S. CBP should give her an I-94 that matches the expiration date of the new approval notice.
B. Travel Outside The US While H1B Change Of Status Is Pending
Foreign nationals in valid nonimmigrant status may have an employer file an H1B Change of Status petition on their behalf. Lets examine the various scenarios when a need to travel outside the US arises while the Change of Status petition is pending.
NOTE: It’s always safe to travel after H1B approval.
1. Travel Outside The US When H1B Change Of Status Petition Is Pending
Travel outside the US while an H1B Change of Status petition is pending will result in automatic abandonment of the request to change status. In this scenario, USCIS may still approve the request for H1B by the employer, but the change of status request should be denied.
The beneficiary may only return to the US in their previous nonimmigrant status (if still valid or applicable) or the beneficiary must wait until the H1B petition is approved so that he/she can obtain an H1B visa stamp with which to re-enter the US.
If a Beneficiary travels outside the US while an H1B Change of Status is pending, USCIS may inadvertently approve the change of status. Beneficiaries who returned to the US in the previously held nonimmigrant status should not rely on this approval. In order to activate the H1B, the beneficiary must leave the US and obtain an H1B visa stamp and re-enter or the employer must file a new Change of Status/Amendment petition.
OPT期间抽中H1B，等待移民局审批的过程中离境，会自动放弃the request to change status。若是F1签证，那么只能以F1签证入境。或者等到H1B生效后，去使馆获得H1B visa stamp后再入境美国。若继续以F1入境美国，那么海关有权决定是否给你change of status。若否，那么需要激活H1B的身份，则必须离开美国，回母国办理H1B visa stamp后入境；或者请公司重新提交change of status/amendment申请。
2. Travelling Outside The US When H1B Change Of Status Petition Is Approved With A Future Start Date
If an H1B Beneficiary is travelling outside the US after an H1B petition is approved with a future start date but is re-entering the US before the validity of the H1B begins, the foreign national may enter the US in the previously held nonimmigrant status. The foreign national’s nonimmigrant status will then change to H1B as of the date of the H1B validity start date.
Opt期间抽中H1B，并且H1B已经审批。那么可以用之前的F签证身份入境。等到H1B生效后自动转换成H1B签证。
IMPORTANT
If an H1B Beneficiary undertakes a travel outside the US after an H1B petition is approved with a future start date but is re-entering the US after the validity of the H1B begins in another nonimmigrant status, the H1B Change of Status is effectively abandoned.
举个例子：
Elizabeth was in H4 status and an H1B Change of Status petition was filed on her behalf. While the H1B Change of Status was pending, she traveled outside the US. The H1B was approved when she was abroad. What effect does that have on her H1B? What were her options to return to the US?
When Elizabeth left the US while the H1B Change of Status was pending, the request for Change of Status was abandoned. Elizabeth would have had 2 options to re-enter the US:
- Obtain an H1B Visa stamp at the US Consulate once the H1B was approved and travel on H1B visa to re-enter the US in H1B status.
- Return to the US with a valid H4 visa to resume her H4 status. With this option, once the H1B was approved, she would have to leave the US again to obtain an H1B visa and re-enter OR her employer would have file a new H1B petition to change her status.
结论
Travelling outside the US while an H1B petition is pending has numerous pitfalls and can be risky unless the employee is armed with the accurate information, and proper precautions are taken before undertaking the H1B travel outside the US.