Can you travel on a visitor’s visa after changing status?

Dear Atty. Gurfinkel:

I have a 10-year multiple visitor’s visa, valid up until 2008. Last year, I went on a vacation to America. A few months after my arrival, I found an employer who had a job opening, and was willing to file an H-1B petition for me (temporary working visa for college graduates, for a job requiring that degree). I also applied for "change of status" from "visitor" to "worker", which was approved, and I started working in that job position.

I would now like to visit my family in the Philippines. Since my visitor’s visa is valid up until 2008, could I still travel on my visitor’s visa for my vacation, and then return to the U.S. to resume my employment? Very truly yours,

E.B.

Dear E.B.:

If you leave the U.S. after changing status, you may not be able to re-enter the U.S. using your visitor’s visa. Once you leave the U.S., you would need to apply for an H-1B visa at the U.S. Embassy. If your application is approved you would be issued an H-1B visa, and would present the H-1B visa, not the visitor’s visa, in re-entering the U.S.

When a person applies for a change of status in the U.S. (i.e. changes from a visitor to an H-1B worker), the BCIS issues an approval notice, not a visa. The change of status in this instance means the person would now be considered to be in "working" status, and no longer in "visitor" status.

Accordingly, since the person is no longer a "visitor", he cannot travel and re-enter the U.S. using a visitor’s visa. A visitor’s visa means that a person’s sole and exclusive intent is to visit the U.S., and not to work, study, etc. However, once you change status into working status, it is no longer your true intent to just "visit". Your intent is to "work". Therefore, it would be necessary for you to get the appropriate visa that matches your intent when you re-enter the U.S.: an H-1B working visa from the Embassy.

Presenting a visitor’s visa to re-enter the U.S. to resume your job could be considered by the Department of Homeland Security (DHS) as fraud or misrepresentation.

With the ever-expanding database available to the inspectors at the ports of entry, it could be possible that records of your change of status are reflected in the DHS’s computers at the airport, such that if you try to present the visitor’s visa, claiming you are only coming to "visit", they could see that you have already obtained a change of status. Then you could possibly find yourself having your visitor’s visa cancelled and being put on the next flight out of the U.S.

Accordingly, whenever anyone has changed status and wants to travel outside the U.S., I would recommend that they seek the advice of an attorney, who can analyze their situation and guide them accordingly.

Four offices to serve you: LOS ANGELES: (818) 543-5800; SAN FRANCISCO: (650) 827-7888; NEW YORK: (212) 808-0300; PHILIPPINES: 894-0258 or 894-0239.

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