What Is The Last Action Rule?
As the name implies, The Last Action Rule means that the last action by the U.S. Citizenship and Immigration Services will determine an aspiring American's immigration status. While the concept of The Last Action Rule may seem complex, it is actually quite simple.
The meaning of the last action rule's can be best explained through its application. Take this scenario:
You entered the United States with your F-1 Visa (non-immigrant student Visa) and later your employer decided to file for an H-1B (work permit) Visa. Your H-1B was approved and would take effect in 2 months (as seen on your notice of action/ Form I-797).
Naturally, you would think that you have to leave the U.S. and re-enter on or after 2 months for your H-1B status to take effect. But, this is wrong – the last action rule doesn’t operate this way.
In this scenario, the last action rule points that you do not have to leave and re-enter the U.S. on or after the day your H-1B status is set to take effect, because the last action taken by the Department of Homeland Security was approving your F-1 status.
Your I-94 (arrival/departure) controls your status inside the U.S. The approval of the H-1B won't begin for another 2 months, so it’s the “last action” that controls your status. Since you remain in valid F-1 status until the next action (activation of your H-1B in 2 months) takes place, you need not leave the US.
Last Action Rule In Multiple Status Change Applications
This can also cause sticky problems if there are two applications for a change of status pending at the same time. Suppose you are on a B-2 and before it expires, you file an extension. That extension remains pending. Then you are admitted to a school and file a change of status to F-1. Now you have two applications for a change of status pending.
You will need to ensure that the B-2 extension is approved to cover the time between the expiration of the first B-2 and the approval of your F-1. That way, you maintain status. If, however, the F-1 is approved first, then a subsequent B-2 extension approval will cause the F-1 to be lost! This is because the “last action” taken would have been the B-2 extension, not the F-1 approval.
You must take great care to maintain your non-immigrant status. Failure to do so can result in falling out of status, which (these days) may mean a nasty surprise in the mail: a Notice to Appear for a deportation hearing.
Still Unsure? Contact Us!
After getting your H-1B approved, all you have to do is relax, and when it's time, your previous F-1 status would change to your new H1-B status. With this, you should be able to rest easy, should you find yourself in this situation.
That being said, situations differ, and you may find yourself in a completely different scenario than the ones painted above. When this happens, call us! Let us use our decades of experience to fight for you. Avoid wasting time, money, and save yourself the headache.
We will provide you guidance, and answers to questions you have about your case, and the last action rule.