FAQ: Re-Entering the US During F-1 to H-1B Change of Status

FAQ: Re-Entering the US During F-1 to H-1B Change of Status
September 12, 2016

Q1: My H-1B Change of Status petition is pending. If I leave the U.S., will it be denied?

Your H-1B 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, which 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. Alternatively, your employer may submit another H-1B COS petition (not be subject to the H-1B cap).

 

Q2: 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, provided your passport and F-1 visa stamp are valid, and your Form I-20 is 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If your F-1 visa is no longer valid, you will need to apply for a new F-1 visa before you may re-enter in F-1 status.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.

 

Q3: 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?

Yes, provided you have a valid F-1 visa stamp, I-20 endorsed for travel, Employment Authorization Document (EAD) for Optional Practical Training, and you are returning to resume 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.

 

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. As mentioned above, having an approved H-1B petition may make it challenging to prove you have “nonimmigrant intent,” a requirement for an F-1 visa.

Q4: 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?

 

You can stay in the U.S. and continue working due to the “cap gap” rule which automatically extends your OPT work authorization to October 1st to “fill the gap.”

 

If you leave the U.S. after your OPT has expired, however, 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.

 

Q5:  How soon can I apply for my H-1B visa and how soon can I re-enter in H-1B status?

You may apply for H-1B visa as early as 90 days before your H-1B validity period starts, and you may enter the U.S. as early as 10 days before your H-1B validity period starts.  Note that you cannot start H-1B employment until your validity period starts (usually October 1st).

 

Q6: Can I travel to Canada, Mexico or one of the islands adjacent to the U.S. if my F-1 visa has expired?

 

Under the automatic visa revalidation rule, your expired F-1 visa is automatically revalidated for U.S. re-entry from Canada, Mexico or one of the islands adjacent to the U.S. provided your visit was for less than 30 days and you have a valid Form I-20 and an unexpired I-94. The automatic visa revalidation rule does not apply if any one of the following applies:

 

  • You applied for a new visa while abroad and it has not been issued to you;
  • You applied for a new visa while abroad and it was denied;
  • You have terminated SEVIS record indicating you are out of status; or
  • You have been out of the U.S. for more than 30 days.

 

The adjacent islands are: Saint Pierre, Miquelon, The Dominican Republic, Haiti, Bermuda, Bahamas, Barbados, Jamaica, The Windward and Leeward Islands, Trinidad, Martinique, and other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea.

 

Q7: Is a valid F-1 visa required to visit Puerto Rico, or the U.S. Virgin Islands, or the Northern Mariana Islands?

 

No, unless you also enter another country in-route to these U.S. territories.  You will need a valid Form I-20 and a valid unexpired I-94.

 

Q8: What documents do my spouse and children need to carry to re-enter the U.S. in F-2 status after travelling abroad without me?

 

Your spouse and children will need your current I-20 with the DSO’s signature on page 3 approving travel, valid F-2 visa (unless visa exempt or the automatic visa revalidation rule applies), copy of your EAD card (if applicable), your Form I-94 and you must be in valid student status (check with DSO before traveling).

 

Q9: Can I reenter the U.S. during the 60-day period after finishing my program or OPT and I was not chosen under the H-1B lottery?

 

No. The 60-day grace period is only for you to prepare to leave the U.S.