I am working for company A and my contract ends in a month. I have accepted an offer from company B, which has already filed the petition. The attorney is telling us that it will be several months to get the approval, and I would like to depart the U.S. for a visit to my country while this is going on...may I do so without jeopardizing the case?

There are a number of issues and components to your question, so the best way to answer them is with a bulleted list of responses. Before that, an important caveat: INS has recently responded to several attorney inquiries with fairly liberal interpretations as to when and how a person in this situation can reenter the U.S. We are troubled by the fact that these statements, while welcome, contradict long-standing INS policy and, most importantly, have NOT been distributed to field offices of the INS, where the scenarios in question actually arise. The bullets:

• A timely filing of a nonimmigrant visa extension generally permits the applicant to remain in the U.S. while such application is pending In the past, if a person was here on a B-2 visa and filed an extension for a second six months, the INS, in the event of a denial of said extension, would advise the applicant of the date by which he/she needed to leave the U.S. The INS is NOT doing that anymore; in one particularly troubling case in which our office intervened, the INS took the position that since the extension had NOT been granted by the expiration date of the initial I-94 (the extension was filed four weeks before expiration), the person was REQUIRED to leave the U.S. and ABANDON the pending extension! Big time wrong and it was resolved, but it is a glimpse as to how things can really get twisted: HOW CAN I LEAVE WHEN I AM ABANDONING THE REQUEST FOR EXTENSION THAT YOU HAVE PENDING BEFORE YOU IN DOING SO? Scary.

• If you are here with A and offered a job with B, and the petition was timely filed (as it was), then you can clearly remain in the U.S. while the petition is pending approval. However, your ability to travel will depend on various elements. Most likely, since your H- 1B visa stamp was probably issued to coincide with the date of your employment period with A and since the contract with them is expiring, your visa stamp expires as of the last day of your job.

• Under the new American Competitiveness in the 21st Century Act (AC21) law, INS guidance suggests you may travel with a transfer pending but not more than 10 days after the date that your original H-1B visa expired. We must caution you, however, that at the time this FAQ was last updated, this information is only "guidance" from the INS, and the final regulations have not yet been published in the matter.