USCIS 'Last Action Rule': Effects of Multiple Pending Applications and Traveling Abroad While a Case Is Pending

Today a reader asked: She came to the United States on a B2 visa, had previously applied for an extension once and it was approved, later married her boyfriend, and applied to change status to F2, but it has not been approved for a long time. Worried about falling out of status, she wants to simultaneously apply for another B2 extension and asks how to proceed?

When a person files multiple nonimmigrant applications at the same time, or travels abroad while an extension or change of status application is still pending, they are likely to encounter a USCIS policy known as the 'Last Action Rule.' Simply put, for nonimmigrant applications, the person's status is determined by the 'last status that took effect.'

USCIS's 'Last Action Rule'

This policy does not originate from immigration law (it cannot be found in the statute), but was introduced by USCIS officials: first by Jacquelyn A. Bednarz, Chief of the Nonimmigrant Branch for Adjudications, in 1993, and later reaffirmed in 2004 by Efren Hernandez, Chief of the Business and Trade Services Branch of USCIS.

I have not yet located Jacquelyn's 1993 letter; Efren Hernandez's 2004 letter is available here. In it, he answered a lawyer's question about whether a person's change of status remains valid under the following circumstances:

• The person applied in 2004/07 to change status from F-1 to H-1B

• The application was approved in 2004/08 (a sigh: approvals were so fast back then)

• The H-1B effective date was 2004/12/01

• The applicant left the United States on 2004/09/01

• The applicant returned to the United States on 2004/09/15 with an F-1 visa

The lawyer's question: In this case, will the applicant's H-1B status still automatically take effect on 2004/12/01? If not, how should it be remedied?

Efren's answer was: the 'last action' in that case was the applicant's H-1B automatically taking effect (note: not the approval of the application). Under the 'last valid status' policy, the applicant would be in H-1B status after 2004/12/01; the fact that the applicant later departed and re-entered the U.S. after approval does not affect the 'last action rule' determination.

Change of Status Within the United States

Suppose you entered the United States on an F-1 visa, and later an employer filed an H-1B visa for you, which was approved and will take effect in two months. In this example:

• At this moment, the 'Last action' regarding your status is not 'USCIS approved your H-1B status,' but rather 'you were inspected and admitted by CBP and your F-1 status took effect' — therefore, your status at this moment is still F-1.

• Two months later, your H-1B status automatically takes effect (no need to leave the United States, re-enter, and activate H-1B status); assume this day is 8/22.

• After that day, the 'Last action' regarding your status is 'H-1B status took effect on 8/22.'

Filing Multiple Applications Simultaneously

If multiple applications are filed simultaneously, the situation can be more nuanced. For example: a person enters as a B2, timely files an extension before the I-94 expires (requesting from 3/1 to 9/30), which is still pending; in April, they receive a school admission and file an application to change status to F-1:

• If USCIS approves your F-1 status on 6/1 (USCIS eliminated the 'bridge the gap' requirement in 2021/07, so you no longer need to maintain your current status until 30 days before the start of classes; F-1 takes effect immediately upon approval; see this article for an introduction) — then the 'Last action' regarding your status is now that your F-1 status took effect on 6/1.

• If USCIS then approves your B2 extension application on 8/1, the 'Last action' regarding your status is now that your new round of B2 status took effect on 8/1 — this means you will lose your F-1 status!

Note: a person can hold multiple nonimmigrant visas at the same time, but can only have one lawful status. For example, you may hold both a B1/B2 and an F-1 visa, but if you enter with a B visa and are inspected by CBP, your status is B—not 'both B and F-1 status'—and you may not attend school!

For the same reason, if you are in F/H-1B status, have filed an I-485 for a green card, and obtained an AP + EAD Combo card, attorneys often advise against using the Combo card for work, because doing so would cause your original F/H-1B status to become invalid. See: {https://gonglue.us/134032}.

Five Case Analyses

Below are five case analyses provided by Zhang & Associates, P.C. The original text is in English; I have compiled and translated them based on my understanding (many parts have been rephrased for Chinese readers' convenience, but the 'spirit' should largely match the original). Readers are advised to click the link to check the original text:

Case 1: The applicant works on H-1B. Fearing possible layoff, they filed an application on 2007/02/30 to change status to H-4, which is still pending. Later, they received a new offer, and the company filed a new H-1B for them on 2007/05/01. Question: Do these two applications affect each other?

Answer: H-4 takes effect on the date of approval; if the new H-1B is approved after that, the H-1B will take effect and the H-4 will become invalid. Conversely, if the new H-1B is approved and takes effect first, and the H-4 application is approved afterward, then the 'last action' at that point is the H-4 approval and effective date, meaning you will be in H-4 status (and the H-1B will become invalid). To avoid the latter scenario, you should contact USCIS to cancel the H-4 application before it is approved.

Case 2: I filed to change from F-1 to H-1B on 2006/10/01; after being laid off, I filed to change to H-4 on 2007/02/24. While that was pending, a new employer filed a new H-1B on 2007/03/18. On 2007/03/18, my H-1B was approved; on 2007/03/18, I mailed a letter to USCIS requesting withdrawal of the H-4 application. However, on 2007/05/01, my H-4 was still approved. What is my status at this point?

Answer: The 'last action' regarding your status is the H-4 approval and effective date, so your status is H-4. Moreover, you cannot withdraw the H-4 application—otherwise you would have no lawful status from 2007/02/24 to 2007/03/18; you need this timely-filed H-4 to maintain lawful status during 02/24–03/18. If you want H-1B status, you should now file another application to change from H-4 to H-1B, or depart the U.S. and apply for an H-1B visa to re-enter.

Case 3: I work at a university. My OPT expires on 2007/05/15. The school has filed an H-1B with a start date of my OPT expiration date. However, due to long processing times, the H-1B is still not approved after my OPT expires. I want to reactivate my F-1 to take summer courses. Will this affect my H-1B application?

Answer: It will not affect it. You are currently in F-1 status; to take summer courses, you only need to obtain a new I-20 from the school, which does not involve any USCIS 'action.' However, if you apply for any other status, such as H-4, the 'Last Action Rule' issue arises—if you first obtain H-1B status and then later obtain H-4 status with an effective date after your H-1B effective date, then at that time you will be in H-4 status and your H-1B status will become invalid.

Case Four: My application to change from F-1 to H-1B has been approved. Am I now in F-1 status or H-1B status?

Answer: If your application is approved and the H-1B effective date has passed, then you are now in H-1B status. However, if your H-1B effective date has not yet arrived, then you remain in F-1 status—it is not the case that 'approval automatically and immediately changes your status.'

Case 5: I am in F-1 status. I applied to change to H-1B in 2007/04 and was approved in 2007/05, with an effective date of 2007/10/01. I plan to travel abroad in 2007/06 and return to the U.S. in 2007/08. Will I need to apply for a new F-1 visa to enter? Will this affect my H-1B status?

Answer: When you enter in 2007/08, your H-1B status has not yet taken effect, so you need to apply for a new F-1 visa and enter in F-1 status. This does not affect your H-1B status. Although your re-entry with an F-1 visa occurs after the H-1B approval, 'approving your H-1B' is not the 'last action' regarding your status—your H-1B status automatically taking effect on 2007/10/01 is the 'last action' regarding your status.

Note: If you travel abroad before the H-1B is approved, your H-1B application will be deemed abandoned, and the above 'last action' analysis will not apply (i.e., after re-entering with F-1, you will need to file a new change of status to H-1B).

Consequences of Traveling Abroad While a Case Is Pending

• If you have applied for a change of status and travel abroad before it is approved, your application will be deemed abandoned and denied. This is specifically noted in Case Five from Zhang & Associates above; the Department of Justice memorandum HQ 70/6.2.9 dated 2001/06/18 explicitly explains: 'Service officers are reminded that an alien on whose behalf a change of nonimmigrant status has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the request for a change of nonimmigrant status.'

• If you have applied for an extension of status and travel abroad before it is approved, your application may still be approved, but you should pay attention to the 'Last action rule' discussed in this article — you may inadvertently override your new status, which may shorten the period you can stay or even cause you to be out of status; see {https://gonglue.us/135311}.

Applying for a Visa Abroad Is Not Affected

This question can be explained by quoting a passage from an article by Liang Yong Law Firm: 'If, before filing the H-1B application, you already know there is a possibility that you must depart the U.S., you can directly request a visa interview at a U.S. embassy or consulate abroad. In that case, even before the application is approved, you can depart first without affecting the H-1B approval. Of course, under such circumstances, you must obtain the H-1B visa before returning to the U.S.'

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• U.S. Department of Justice, HQ 70/6.2.9 Memorandum

• The HMA Law Firm, The Last Action Rule: Workings and Application

• Zhang & Associates, P.C., The Last Action Rule

• Liang Yong Law Firm, "Issues Relating to Entry and Exit of the United States After Filing for H-1B"