WE Blog @ AABANY

Summer is here and employees are taking their well-deserved vacations. Workers are focused on enjoyment, relaxation and recharging. But human resources departments and foreign workers employed in the U.S. should execute the steps needed to ensure the employee can return to work once their vacation is complete.

Generally, all persons who have an approved U.S. Citizenship and Immigration Services petition to extend an existing, or change to an entirely new, non-immigrant visa status (e.g.; H, E, L, O, etc.), if traveling abroad, must procure the actual visa at a U.S. Consulate before returning to work in the U.S. Also, for any employee returning to the U.S., it is “best practice” to carry a letter wherein the employer states the employee’s travel dates and purpose, and that employment will continue upon return.

During the U.S. summer months, U.S. Consulates abroad are not always open when expected. Remember, Consulates respect the host country’s business holidays and employees may take vacation pursuant to local custom. For example, in August, U.S. Consulates in Europe may operate with reduced staff – affecting visa processing times.

Well before – sometimes months in advance of – making arrangements for a foreign worker to secure their visa abroad, an employer and its counsel should consider the intended travel dates, U.S. Consular procedures, and visa interview appointment availability. You do not want to approve a ten-business-day international vacation for an employee, and have flights and hotel accommodations booked, only to find out later that a Consular visa appointment slot is unavailable for another three weeks – in effect, losing that employee’s services for over a month.

Another common scenario to be aware of involves certain F-1 visa foreign students who secured post-graduate employment in the U.S. pursuant to optional practical training (OPT) and filed a petition to change to H-1B visa status. While employment remains authorized past OPT expiration – to resolve the employment authorization “gap” otherwise created after OPT status ends until H-1B visa status begins – travel abroad may pose significant risk. Specifically, the April 23, 2010 U.S. Immigration and Customs Enforcement “Cap Gap” advisory memorandum warns that those persons with expired OPT who travel abroad, may be deemed to have abandoned a pending petition to change to H-1B visa status. To avoid this problem, an employer may file for premium processing and secure H-1B visa petition approval before travel or – with enough foresight – would have, instead, filed the H-1B visa petition seeking consular processing abroad to coincide with the employee’s intended travel dates.

There are many scenarios affecting visa procedures, employment authorization, employee compensation and other issues, apart from the ones discussed generally above, that arise when foreign employees vacation outside the U.S. Look ahead and plan well in advance of any travel abroad.

Rio M. Guerrero is a partner with the immigration law firm Guerrero Yee LLP in New York City. [[email protected]] He is also Co-Chair of the AABANY Immigration and Nationality Law Committee and an Adjunct Professor of immigration law at the CUNY School of Professional Studies in Manhattan.[Rio Guerrero’s LinkedIn]