The Last Action Rule
Although not in any formal ruling or case law, there is a general rule followed by the USCIS in immigration practice referred to as the “Last Action Rule” where the last action of the USCIS is deemed to govern a petitioner’s status. Sometimes it is difficult to ascertain the “last action” in a sequence of immigration events. It is very important for petitioners to understand the last action rule, especially when an alien submits two petitions at the same time or within a short period of time. Ignoring the Last Action Rule may cause very severe consequence.
There are usually two kinds of USCIS actions: approval of a petition by USCIS and taking effective of a USCIS approval. For visa /status such as H-1B and L, the approval date is usually earlier than the effective date. For such cases, the last action by USCIS that determines a person’s status is the effective date of the approved case. However, for certain type of visa/status, such as F1 and J1, the effective date can be the same or earlier than the approval date. Therefore, for those cases the approval could be the last action of the USCIS that determines the person’s status. The following examples will help us understand how the last action rule determines an applicant’s status.
Q4: I filed an H-1B petition when I was in F-1 status and it was approved. Am I now in F-1 status or have I changed to H-1B status upon approval?
A: When you filed for a change of status from F-1 to H-1B, and if the starting date of the H-1B has become effective, then your status changes. However, if the H-1B has been approved but effective only from October 1, 2007, your status will not change to H-1B until October 1, 2007.
There is one special exception to the Last Action Rule. The USCIS has clarified the issue regarding the continued validity of a previously filed and approved change of status petition with a future starting date, when a person travels abroad after such approval but seeks to enter on a prior status. For such a situation, Hernandez, Chief of Office of Adjudications, has clarified that the “taking effect” of a Change of Status (COS) or effective date of the change of status Notice of action--rather than the approval of that COS--may be last action. (08/18/2004 letter to Susan Cohen). Please see the following example:
Q5: I am an F-1 student now and I applied for a change of status from F-1 to H-1B in April 2007, and the change of status was approved in May 2007, with a starting date of October 1, 2007. I will travel abroad in June 2007 and come back in August, 2007. Should I still apply for F-1 visa and will that affect my H-1B?
A: You will need to apply for F-1 visa and be readmitted into the U.S. in F-1 status in August, 2007 because your H-1B is not yet in effect in August, 2007. However, your H-1B will not be affected because of your reentry with F-1 visa. Even though your reentry is a later action than the approval of H-1B, it is not the last action by USCIS that governs your status. According to the last action rule, the effective date of your H-1B controls your status. When your H-1B comes into effect on Oct 1, 2007, your status will be changed from F-1 to H-1B. If you don’t take further actions to change to another status, taking effective of H-1B is the last action of USCIS, and it will determine your status as H-1B as of Oct 1, 2007*.
* Note: However, if when you travel, your H-1B is still pending, your H-1B petition is deemed abandoned, and the Last Action Rule doesn’t apply.
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