Departing While a Change or Extension of Status Is Pending: Change of Status Deemed Abandoned; Extension Not Automatically Abandoned but Poses Risks

If you are currently in the United States and wish to extend your existing immigration status (for example, a B1/B2 extension) or change to another status (for example, you entered with B1/B2 and received a university admission, so you need to change to F-1 to study), you may file Form I-539 with USCIS to request an extension or change of status without leaving the United States. However, if you leave the United States before the application is approved, the consequences will differ between these two situations.

If Your Application Is for Change of Status

If you have filed a change of status application (for example, from B1/B2 to F-1) and leave the United States before it is approved, your application will be deemed abandoned and will be denied. The Department of Justice's 2001 HQ 70/6.2.9 memorandum provides a clear explanation:

The memorandum reminds Service officers 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. This has been, and remains, the Service's long-standing policy. The Office of Adjudications has described this particular policy in numerous letters and correspondence with the public and the legal community. If at any time it comes to the attention of the Service that an alien on whose behalf a request for a change of nonimmigrant status has been filed has traveled outside of the United States during the pendency of the request for a change of status, the application or petition should be denied pursuant to 8 CFR 248.3(g).

If Your Application Is for Extension of Status

If you have applied for an extension and leave the United States before it is approved, the above analysis does not apply. The Department of Justice notes later in the same memorandum: "Please note that the reference contained in the article to a October 20, 1999 letter written by Thomas Simmons is not germane to this issue because it relates to the filing of an extension of temporary stay, not a request for a change of nonimmigrant status. Current Service policy does not preclude an alien from traveling outside of the United States while a request for an extension of temporary stay is pending with the Service ."

In other words: after filing an extension application, you may leave the United States, and this will not cause your application to be automatically deemed abandoned and denied. But note: this only means your application "will not be automatically deemed abandoned"; it does not mean "there will be no impact."

In fact, since the Covid-19 pandemic, due to slow processing by USCIS, many people have filed B1/B2 extension applications, left the United States as scheduled after several months, and their applications were still pending; based on the feedback we have received, most of these applications were ultimately denied—I think the reason is "you've already left, so the extension is naturally unnecessary"—but in such situations, as long as your I-94 had not expired and you had lawful status when you filed the application, the eventual denial will not affect your visa and will not have a negative impact on your future entry or applications for immigration benefits. See {https://gonglue.us/14973}.

Leaving the United States after applying for an extension but before approval can involve many nuanced situations. You may refer to this article by the immigration law firm Scott Legal, P.C., and this Q&A prepared by the law firm Marks Gray, P.A. I have summarized and translated some key points below.

You May Inadvertently Shorten Your Status

Suppose you are in H-1B status, have applied for an extension, and traveled abroad before USCIS approves it. If USCIS approves the extension after you leave, you need to obtain the I-797 approval notice and apply for a new H-1B visa at a consulate in order to activate the new H-1B status upon entry. If the extension has already been approved and taken effect, but you enter using an old H-1B visa that has not yet expired, the CBP officer will give you an I-94 based on the validity period of the old visa, and at the same time, your extended status will be invalidated—this is called the "last action rule." See our article explanation: {https://gonglue.us/134595}.

In the above scenario, as long as your old H-1B visa has not expired, you can use it to enter lawfully, but the period of stay given by the CBP officer may be much shorter than your new status period after the extension; you may have to apply for an extension again after entry.

B1/B2 status may have the same problem:

• Suppose you apply for an extension on 2022/08/01, with a requested period from 2022/10/1 to 2023/03/31, but you leave on 2022/09/01, when the application has not yet been approved;

• Several months later, you re-enter on 2023/03/01, and the CBP officer gives you a 6-month period of stay until 2023/08/31;

• But USCIS approves your earlier extension application on 2023/03/15. This will be the "last action" on your status and will override other statuses that previously took effect—meaning that from this moment on, the status CBP gave you upon entry until 2023/08/31 is invalidated, and you will have the new status approved by USCIS, which expires on 2023/03/31.

Impact of Re-entering with Another Status

Returning to the second example above: suppose you applied for a B1/B2 extension, left before approval, and several months later entered with another visa, for example, coming to the United States on an F-1 visa to study on 2023/03/01, passing CBP inspection without issue. However, on 2023/03/15, USCIS approved your previously filed extension application, and you suddenly revert to B1/B2 status and cannot study! If you are unaware and continue studying and/or do not leave the United States (or apply for an extension/change of status) before the B1/B2 expires on 2023/03/31, you will violate your status or be out of status.

If Your Current Visa Has Expired

Above we discussed that "you may inadvertently shorten your status"—for example, a new H-1B has been approved and taken effect, but you enter using the old H-1B; this operation presupposes that your old H-1B visa is still valid. If your previous H-1B visa has already expired, then leaving while the extension is still pending may be more troublesome:

• Because your old visa has expired, you need to apply for a new visa before you can enter.

• If you apply for another visa, such as B1/B2, to re-enter, and USCIS happens to approve your H-1B extension before that, you may inadvertently override your new H-1B status. See the analysis in the previous section "Impact of Re-entering with Another Status."

• Or you may have to stay abroad, wait for USCIS to approve your H-1B extension, and then take the I-797 to a consulate to apply for a new H-1B visa. If USCIS delays approval, you will just have to keep waiting.

Summary

• If you have applied for a change of status, do not travel abroad before approval.

• If you have applied for an extension, although in theory you may travel abroad, attorneys generally recommend avoiding it; if you must leave the country, it is advisable to first consult and discuss in detail with an immigration attorney to understand the possible consequences and feasible options.

This article discusses nonimmigrant visas. If you have filed an I-485 to apply for immigrant status (green card) and leave before it is approved, you generally should leave only after obtaining Advance Parole; otherwise, the application will be deemed abandoned after departure (except for H-1B/L-1 dual intent visas and K visas). See: {https://gonglue.us/33035}.

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

• Scott Legal, P.C., Can I Travel if I file for an Extension of Status?

• Marks Gray, P.A., FAQ: Travel Abroad While a Petition or Application is Pending