With the holidays approaching, many employers with foreign national employees are wondering what they need to know before their employees depart from the United States. Here are five questions to ask yourselves.

No. 1: Does the employee have a pending petition with the USCIS? Foreign national employees must be in the United States when petitions are filed with the U.S. Citizenship and Immigration Services, but they may be able to travel while their petitions are pending. If the petition is a request for an extension of stay and it is approved while the foreign national is out of the United States, the approval notice should be sent to the employee abroad so it can be presented upon re-entry. Some petitions, like green card petitions, must be receipted before the employee can travel abroad. It is important to check with your immigration counsel to ensure that the foreign national is cleared for travel.

No. 2: Does the employee’s passport have a valid U.S. visa stamp? Canadians are visa-exempt and do not require a visa stamp to enter the United States. However, passports for individuals of all other nationalities must have a valid U.S. visa to re-enter. The visa stamp should reflect the employee’s current status and be valid at the time of entry. For some classifications, such as H-1Bs, the visa stamp will be valid even if it was issued while the individual worked for a different employer. For other classifications, such as L-1s, the visa stamp is tied to the employer. If a new visa stamp is required, the employee must make an appointment with the U.S. Consulate abroad to acquire a new visa stamp. The Consulate’s website has detailed instructions on paying fees, scheduling appointments, and specific procedures for completing the applications. In general, all applicants will need to bring the following documents to their interview appointments:

• Original Form I-797 Approval Notice with copy of filed/approved petition.
• Employment Verification Letter (the employee should request this letter from HR).
• Three recent pay stubs.
• Confirmation page from Form DS-160.
• Original passport that has at least one blank page and that is valid for at least six months beyond the period of intended stay in the United States.
• Evidence of payment of visa application fee.
• Original or copies of completed academic credentials and foreign credentials evaluation, if applicable.
• A passport-type photograph (5 cm x 5 cm) taken within the past six months against a white background. Photos are typically uploaded when completing the Form DS-160; however, the applicant should bring a hard copy of the photo in case the photo did not upload properly.

No. 3: Has your company gone through any mergers, acquisitions, or other changes to corporate structure since the employee’s petition was approved? In some instances, a foreign national’s approval notice may state the name of a company that has been acquired, merged with another company, or undergone a name change. Certain steps can be taken to avoid having to file a new petition, but the employee must carry a travel letter that explains the change to the corporate structure and notes that the appropriate steps were taken regarding the employee’s immigration status (for example, assumption of H-1B workers by the new organization). In these situations, your immigration counsel can provide travel letters. You should request the letter at least two weeks before your employee’s scheduled travel.

No. 4: What documents should the foreign national present upon re-entry into the United States? Foreign nationals must present a valid passport, a valid visa stamp (Canadians are excluded from this requirement), and an original I-797 approval notice or stamped I-129S. F-1 international students should present a valid passport, a valid visa stamp, an EAD card (if applicable), a Form I-20 signed on page 2 by a Designated School Official, and a current verification of employment letter. Foreign national employees should also bring three of their most recent pay stubs, but they will not be required to show these to the Customs and Border Protection Officer unless they are asked to provide evidence of their ongoing employment.

No. 5: Does my employee need to do anything after re-entering the United States? Yes! The employee should provide you with a copy of the new visa stamp (if applicable) and Form I-94 after re-entry, and you should provide this to your immigration counsel so that counsel can monitor the expiration date. Employees can retrieve their I-94s from the CBP website. Copies of I-94s – which determine the period of authorized stay and status in the United States – should be provided to your immigration counsel whenever a foreign national employee exits and re-enters the United States. The employees are responsible for ensuring that they maintain status in the United States, but your immigration counsel can help.