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.

Examples

Q1:  I am currently working with an H-1B visa in a company. In anticipation of being laid off by the end of May, I submitted a petition to transfer my H-1 status (not yet expired) to H-4 on February 30, 2007.  While my H-4 was still pending, I found a new job and the new employer filed an H-1B petition for me on May 1 (note: as I had an H-1B before, the new H-1B application is not subject to the H-1B cap).  Currently, both my H-4 petition and H-1B petition are pending. Will my prior petition for H-4 affect my H-1B petition?

A:  The Last Action rule will govern your status in this case.  Whether your H-4 petition will affect your H-1B petition depends on what is the last action of USCIS. Since H-4 is effective as of approval, if your H-4 is approved before your H1, when it is approved it comes into effect and your status changes from H-1B to H-4. When your H-1B gets approved later and takes effect at a later date, you will again change status from H-4 to H-1B.  In this scenario, since the taking effect of your H-1B is the last action of USCIS, it determines your final status as H-1B.  However, if your H-1B gets approved and comes into effect before the approval of your H-4, when your H-4 gets approved and comes into effect, your status will change from H-1B to H-4. In this scenario, because the last action of USCIS is H-4 approval/effective date, your final status is H-4.  If H-4 is not what you want, it is safer to request the USCIS to cancel or revoke the pending H-4 pending before it is approved. 

Q2:  I changed my status from F-1 to H-1B on 10/01/2006, and later I file H-4 on 02/24/07 due to my layoff.  When my H-4 application was pending with USCIS, another employer filed an H-1B for me. The H-1B petition was approved on 03/18/07. I sent USCIS a withdraw request letter on 03/18/2007 for my H-4 petition.  However, on 05/01/2007 my H-4 got approved. What is my status now?

A:   According to the Last Action Rule, the last action of USCIS controls your status.  Since your H-4 was approved and became effective on 05/01/07, it is the last action of USCIS on your cases, and now you are in H-4 status.  On the other hand, you can’t withdraw your H-4 petition, because otherwise, you are out of status between 02/24/07 and 03/18/07. You need an H-4 status or pending H-4 status to cover the gap between the time of the termination of your previous H-1B and your new H-1B effective date. In order to get H1-B status again, now you need to file another H-1B petition to transfer from H-4 to H-1B status, or leave the U.S. to apply a valid H-1B visa in an American consulate.

Q3: I am going to work as a researcher in a university. My OPT will expire on May 15, 2007.  The school has filed an H-1B petition for me with the starting date as the expiration date of my OPT.  However, because my petition is regular processing, my H-1B is still pending when my OPT expires.  I cannot work while my OPT expires but the H-1B is not approved.  I want to register again as F-1 for one summer semester and wait for the approval of H-1B. Will this affect my pending H-1B?

A:  No. When you register classes in the summer at a school, you need to obtain a new I-20 from the school.  Issuing new I-20 to you does not involve any USCIS action, because you remain the same F1 status.  However if you apply for another kind of visa/status such as H-4 while your H-1B is pending, the last action rule may kick in. You need to make sure that the effective date of that visa/status is no later than your H-1B effective date, otherwise, when that visa/status comes into effect at a later date than your H-1B, as the last action of USCIS, it will invalidate your H-1B.

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.   

(05/12/2007)

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