|  CAN
YOU TRAVEL ON A VISITOR’S VISA AFTER CHANGING STATUS?
by Michael J. Gurfinkel, Esq.
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.
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