FAQ: International Travel During F-1 to H-1B Change of Status

FAQ: International Travel During F-1 to H-1B Change of Status
April 3, 2015

Whether one can re-enter the U.S. during the F-1 to H-1B Change of Status process can be confusing due to the varying scenarios F-1 students can be in. This FAQ answers those questions.

 

1.  My H-1B Change of Status petition is pending. If I leave the U.S., will it be denied?

If your H-1B petition requested Change of Status (COS) and you leave the U.S. while it is pending, your H-1B petition will still be approved (assuming you meet H-1B requirements otherwise), but the COS request will be denied. That is, your H-1B will be approved for Consular Processing. This means your status will not automatically change to H-1B status on October 1st. To effectuate your H-1B, you will need to leave the U.S., apply for an H-1B visa at a U.S. consulate, and re-enter the U.S. with your H-1B visa.

 

Another option is for your employer to submit another H-1B COS petition (which will not be subject to the H-1B cap).

 

2.  After my H-1B COS petition is approved, can I exit and re-enter the U.S. in F-1 status before October 1st if I am still attending school?

Yes, you may return in F-1 status before October 1st provided you return to resume your studies.  Your passport and F-1 visa stamp must be valid and your Form I-20 needs to be endorsed for travel.

 

If your F-1 visa is no longer valid, you will need to apply for a new F-1 visa before you may re-enter in F-1 status.  However, having an approved H-1B petition may make it challenging to prove you have “nonimmigrant intent,” which is a requirement for an F-1 visa.

 

3.   After my H-1B COS petition is approved, can I exit and re-enter the U.S. before October 1st if I am no longer in school?

You can, provided you have an Employment Authorization Document (EAD) for Optional Practical Training and are returning to resume your practical training.

 

If you do not have an EAD or are not returning for practical training, you cannot return in F-1 status.  In that situation, if you leave the U.S., you must apply for an H-1B visa and wait at least until September 20th to re-enter.

 

4.  My OPT has expired and I am waiting for my pending H-1B COS to be approved.  Can I continue working?  Can I travel internationally?

 

If your H-1B was filed before your EAD expired, you can stay in the U.S. and continue working due to the “cap gap” rule which automatically extends your OPT to October 1st to “fill the gap.”

 

However, if you leave the U.S. after your OPT has expired, you cannot return in F-1 status. You will have to apply for an H-1B visa and wait until September 20th to re-enter.

 

5.  My EAD is valid and my H-1B COS has been approved.  Can I exit and re-enter the U.S. before October 1st?

If you have a valid EAD and your H-1B COS was approved before you leave the U.S., you may return with a valid F-1 visa.

 

If your F-1 visa has expired, you may apply for a new F-1 visa at a US Consulate before returning to resume practical training. Your status will still change automatically on October 1st provided you returned to the U.S. before that day. Again, having an approved H-1B petition may make it challenging to prove you have “nonimmigrant intent,” which is a requirement for an F-1 visa.

In addition to having your valid passport, visa, EAD and I-20 endorsed for travel, you should bring a letter from your OPT employer to verify you are returning to resume employment.

 

6.  How soon can I apply for my H-1B visa and how soon can I re-enter in H-1B status?

You may apply up to 90 days before your H-1B validity period starts. Once you have received your H-1B visa, you may enter the U.S. up to 10 days before your H-1B validity period starts, but you cannot start your H-1B employment until your validity period starts (i.e., October 1st).