Please note Fragomen's intended audience is future H-1B employees that will be employed by a cap-subject employer. As an institution of higher education Georgia Tech is cap exempt, therefrom the references to October 1, 2014 may not be applicable.
Are you an F-1 student
who is the beneficiary of an H-1B petition and a request to change status to
H-1B for employment starting on October 1, 2014? If you are planning to travel
abroad between now and October 1, you should carefully consider whether your
travel is necessary.
Traveling internationally
during this time can pose significant risks and result in delays, depending on
whether you are in an ongoing course of study or period of optional practical
training (OPT) or whether you are in the “cap gap” – the period between the end
of your course of study or OPT and October 1, the date that a timely-filed H-1B
petition and change of status will take effect.
If you cannot postpone
travel until after October 1, you should be aware that you may not be able to
reenter the United States in F-1 status during the months before your H-1B
petition takes effect. Instead, you may need to wait outside the United States
and apply for an H-1B visa to reenter in time for your H-1B employment start date.
If you do decide to travel abroad, you must make sure to have all necessary
travel documents and be prepared for possible delays at U.S. consulates and
ports of entry.
The following are some
frequently asked questions and important tips to consider if you are thinking
about leaving the United States before October 1.
1. My H-1B petition and
application to change status to H-1B have been filed and are pending with USCIS.
May I travel internationally while they are pending?
If you leave the United
States before your change of status is approved by USCIS, you will have to take
extra steps to assume your H-1B status on October 1.
According to a
longstanding government policy, if you travel abroad while your H-1B petition
and request to change status are being processed, the change of status portion
of your case will be considered abandoned. USCIS could still approve the H-1B
petition itself, but you would not automatically change to H-1B status on
October 1. Instead, you would have to leave the United States again and apply
for an H-1B visa at a U.S. consulate or, if otherwise permissible, have your
employer submit a new petition to change status to H-1B after your return. If
you apply for an H-1B visa abroad, you could be subject to a long wait overseas
during the visa application process, which could delay your return to the
United States and your ability to begin your H-1B employment on time. See below
for more information about the visa application process.
2. I am an F-1 student
who is still in school and I am not applying for optional practical training.
After my H-1B petition and application to change status are approved, can I
travel abroad before October 1?
After your change of
status is approved but before it takes effect on October 1, you should be able
to travel abroad and reenter, as long as your course of study is not finished
and you are coming back to the United States to resume your studies. (If you
will be finished with school by the time you travel, see Question 3.)
When you travel, make
sure you are carrying a valid passport with a valid F-1 visa stamp and a Form
I-20 that is endorsed for travel. If your F-1 visa is no longer valid and you
will need to get a new one to reenter in F-1 status, you should expect delays
during the visa application process. If you have an approved H-1B petition, it
may be difficult for you to demonstrate nonimmigrant intent, which is a
requirement for F-1 students. See Question 6 for more information about these
issues.
3. I am finished with my
F-1 course of study and I am not applying for optional practical training.
After my H-1B petition and change of status are approved, will I be able to
travel abroad?
You cannot return to the
United States in F-1 status if you travel abroad after your studies are
finished. As long as your H-1B petition was filed before your F-1 student
status expired, you can remain in the United States during the cap gap period
between the end of your F-1 period of stay (including 60-day grace period) and
October 1. But an F-1 student who travels abroad during the grace period or the
cap gap cannot be readmitted to the United States in F-1 status. If you must
leave the United States, you will have to apply for an H-1B visa to return, and
will not be able to work until October 1. See Question 7 for more information
about H-1B visa application procedures and delays.
4. I am a J-1 exchange
visitor who is the beneficiary of an approved H-1B petition for employment
starting October 1, 2014. May I remain in the United States until then?
It depends. As a J-1
exchange visitor, you are authorized to remain in the United States for the
duration of your exchange program, plus a grace period of 30 days. If your J-1
period of stay and grace period end before September 30, 2014, you must depart
the United States and apply for an H-1B visa abroad. You are not eligible for a
change of status to H-1B because there will be a gap between the end of your
period of authorized stay and the day your H-1B petition takes effect. Unlike
F-1 students, J-1 exchange visitors are not eligible for cap gap benefits.
However, if your J-1
period of stay (including grace period) remains valid through the start date of
your approved H-1B petition and application to change status to H-1B, you may
remain in the United States in J-1 status before your change of status takes
effect.
5. I am an F-1 student
awaiting a change of status to H-1B and my OPT has expired. If I travel before
October 1, what are the risks?
If you travel abroad
after your OPT has expired, you cannot return to the United States in F-1
status. As long as your H-1B petition was filed before your OPT expired, you
can remain in the United States and work during the cap gap period between the
end of OPT and October 1. But if you have completed studies and OPT and you
travel abroad during the cap gap, you cannot be readmitted to the United States
in F-1 status.
If you must leave the
United States, you will have to wait to apply for an H-1B visa to return. You
will not be able to work again in the United States until October 1. See
Question 7 for more information about H-1B visa application procedures and
delays.
6. I am currently in a
valid period of OPT and I have a valid employment authorization document. Is
international travel possible if my change of status petition has been
approved?
Yes, if you are in valid
OPT, have a valid EAD and your change of status to H-1B has been approved
before you leave, you should be able to return to the United States in F-1
status, as long as you have the appropriate documents and are able to show visa
and immigration officers that you intend to comply with F-1 rules, including
having nonimmigrant intent. If your H-1B change of status is approved before
you depart the United States, the change of status will take effect on October
1 as long as you have returned to the United States before that day.
You will need the
following documents to reenter in F-1 status:
§ A valid
passport with a valid F-1 visa stamp. If you need to apply for a new F-1 visa
stamp to reenter the United States as a student, you should expect delays at
the U.S. consulate and at the port of entry (see Question 7 for more details);
§ A Form
I-20 that is endorsed for travel by a designated school official;
§ A valid
EAD. If you are applying for an extension of your OPT on the basis of a degree
in a designated science, technology, engineering or mathematics (STEM) field,
you should not leave the United States until you receive your new EAD for the
extension period; and
§ A
letter from your OPT employer that verifies your employment. You must have an
OPT job or job offer before you leave the United States. If you go abroad
before you find a job, your OPT period will be terminated and you will not be
able to return to the United States unless and until you obtain an H-1B visa.
If you travel abroad
while on OPT, caution is advised. In particular, pay attention to the number of
days you spend outside the United States, because that time could be counted
against the regulatory limit on unemployment during the OPT period. USCIS rules
require an F-1 student to have no more than 90 days of unemployment during OPT
(or 120 days for F-1s who have received an OPT extension based on a STEM
degree). This includes time spent outside the United States, unless
international travel takes place during leave that is authorized by your OPT
employer or is part of your OPT employment.
7. Before October 1, I
plan to leave the United States and reenter in my F-1 status, but I will need
to apply for a new F-1 visa while I am abroad. What should I expect during the
visa application process and at the port of entry?
You should be prepared
for possible delays and difficulties when you apply for a new F-1 visa and when
you are inspected at the border.
First, like any visa
applicant, you could be required to go through a security clearance before your
visa can be issued. If your name, personal details or travel history match or
are similar to information in government security databases or travel watch
lists, the State Department will not be able to issue a visa until it confirms
that you are not the same person as an individual who appears on a security
list. Many security clearances get resolved in a matter of weeks, but if you
have a common name, your clearance could take several months or longer. If this
occurs, your reentry to the United States could be delayed.
Second, officials at U.S.
consulates and the U.S. border may question whether you have nonimmigrant
intent, i.e., whether you genuinely intend to return to your home country.
Having a foreign residence that you do not intend to abandon is a requirement
for F-1 status. If you have an approved H-1B in the system, consular and border
officials will know that you have a professional job in the United States – a
possible indication of strong ties to the United States. If a consular or
border officer questions your intentions, you could have your visa or entry
denied or delayed, and may have to wait overseas until you can apply for an
H-1B visa to enter and start your H-1B employment. Having a foreign residence
is not a requirement for an H-1B visa.
8. If I decide to leave
the United States before October 1, how soon can I apply for my H-1B visa and
enter the United States in H-1B status?
You can generally apply
for your visa up to 90 days before your H-1B petition start date, according to
State Department rules. If your start date is October 1, 2014, you would be
able to apply for your H-1B visa no earlier than July 3, 2014. But procedures
differ among U.S. consulates, so you should check with the consulate where you
will apply for specific instructions on when you can submit your visa
application. Contact information for U.S. embassies and consulates is available
at http://usembassy.gov/.
Once you have applied for
your H-1B visa, be prepared for a possible security clearance. As discussed in
Question 7, if your name, personal details or travel history match information
in government security databases or on travel watch lists, the State Department
will not be able to issue your visa until it confirms that you are not the same
person as a listed individual. A security clearance may also be required if you
will work in high technology, engineering or the sciences, or with products or
services that have both commercial and military applications (known as
"dual use" technologies). Security clearances typically get resolved
in a matter of weeks, but can take several months or longer depending on the
circumstances.
Once you have received
your H-1B visa, you may enter the United States up to ten days before your H-1B
petition start date. If your start date is October 1, 2014, you can enter as
early as September 21, 2014. The extra ten days allows you to get settled in
the United States, but you cannot do H-1B work during this time. You are not
authorized to start your H-1B employment until your actual petition start date.
