| September
10, 2001 -The INS has recently published an internal memorandum
clarifying its position regarding those who travel outside the United
States during the pendency of their applications to change nonimmigrant
status. The internal INS memorandum was distributed to Service Center
directors, local district directors, and officers-in-charge at ports
of entry. The memorandum specifies that an application to change nonimmigrant
status should be deemed abandoned if the alien covered by the petition
were to leave the United States after it was filed, and before the
petition was approved. The INS made clear that this policy extended
only to change-of-status applications. Applications for extension
of nonimmigrant status were not covered by the memo, and therefore
beneficiaries of extension applications may travel internationally
without complication.
As a result of this recent clarification of INS policy, BAL advises
any clients seeking change-of-status (e.g., F-1 to H-1B; TN-1 to
H-1B) to restrict their international travel to during the period
between the filing and approval of the change-of-status application.
Otherwise, the subsequent I-797 approval notice for the application
should be deemed effective only after a subsequent re-entry to the
United States. Before such re-entry, a new nonimmigrant visa reflecting
the new visa category must be obtained at a US Consulate, and then
presented to an INS officer along with the new I-797 approval notice,
so as to ensure admission into the proper nonimmigrant status. (Canadian
citizens would be, of course, exempt from obtaining a visa at a
US Consulate, but must otherwise follow the same procedure.)
For further clarification on the ramifications of international
travel during the pendency of a change-of-status application, please
make sure to advise your assigned BAL attorney of any anticipated
international travel plans during the change-of-status process.
--Daniel C. Horne, San Francisco Office
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