Travel Advisory for Foreign Students with a Pending H-1B Change of Status Petition

F-1 students planning to travel broad after their H-1B petitions have been filed with USCIS should be aware of the following:

 

F-1 students with Optional Practical Training (OPT) until October 1st or beyond, and their H-1B change of status petition is pending at USCIS:

 

1. If you leave the U.S. after your change of status has been filed with USCIS but before it is approved, the change of status portion of your petition will be considered abandoned.  This means USCIS would still approve the H-1B petition, but your status will not automatically be changed to H-1B status on October 1.  In this situation, to activate your H-1B status, you will need to depart the U.S., apply for an H-1B visa, and then return to the U.S. to activate your H-1B status.

2. Consulates/embassies will not allow you to apply for the H-1B visa more than 90 days before the validity period and you cannot enter the U.S. in H-1B status more than 10 days before the validity period of October 1.

3. Significant delays are always possible during the visa application process and you will not be able to return in H-1B status until you receive the H-1B visa.

4. Once your H-1B change of status petition has been approved, you can travel  abroad with the following documents:

a. Valid Passport;

b. Valid F-1 visa stamp;

c. Valid EAD;

d. Recently endorsed I-20 valid for travel within the last six months; and

e. A employment verification letter from your OPT employer.

5. If you travel abroad while on OPT, pay attention to  the number of days you spend outside the United States because that time could be counted against your limit of unemployment during OPT (90 days for post OPT and 120 days for STEM OPT).

 

F-1 students in “cap gap”- the period between the end of their OPT and October 1

 

1. If you are in the “cap gap” period, you cannot return to the U.S. in F-1 status if you travel abroad.  This is true whether your H-1B change of status petition is pending or has been approved.  Therefore, we recommend you to remain in the U.S. until your H-1B status starts on October 1, unless you plan to return no sooner than September 21st.

 

2. If you must leave the United States during this period, you will need to remain outside the United States and apply for the H-1B visa. You cannot return to work in H-1B status until October 1.

 

Please contact your attorney at ILG if you plan to travel internationally before your H-1B status starts on October 1.