Are you an F-1 student who is (or will soon be) the beneficiary of an H-1B petition and a request to change status to H-1B for employment starting on October 1, 2011? If you are planning to travel abroad between now and October 1, Fragomen recommends that you carefully consider whether such travel is necessary.
Traveling internationally during this time poses significant risks and possible 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 of time between the end of your course of study or OPT and the date that a timely filed H-1B petition and change of status take effect in October.
The following are some frequently asked questions and important tips to consider if you are thinking about leaving the United States before October 1. 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.
If you have any questions about your specific circumstances, make sure to contact your designated Fragomen professional to discuss any travel plans.
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 on October 1. Instead, you would have to either leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permitted, 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 will not be 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 when you travel, see Question 3.)
When you travel, make sure you are carrying all necessary documents. This includes 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. With an approved H-1B petition, it may also be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 5 for more information about these issues.
3. I am finished with my F-1 course of study and I will not be 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 (plus 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 again until October 1. See Question 7 for more information about H-1B visa application procedures and delays.
4. I am an F-1 student 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 an F-1 student who has completed studies and OPT and who travels abroad during 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 again until October 1. See Question 7 for more information about H-1B visa application procedures and delays.
5. 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, under these circumstances and if 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 has been 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 will 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 6 for more details).
- A Form I-20 that is endorsed for travel by a designated school official.
- A valid employment authorization document (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.
- 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 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 the OPT period (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, according to guidance from U.S. Immigration and Customs Enforcement.
6. Before October 1, I am planning 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 in obtaining a new F-1 visa and/or reenter in F-1 status.
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 on 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 in a database or watch 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.
7. 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?
According to State Department rules, you can generally apply for your visa up to 90 days before your H-1B petition start date. For example, if your start date is October 1, 2011, you would be able to apply for your H-1B visa no earlier than July 3, 2011. Because procedures differ among U.S. consulates, though, 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 6, 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 an individual listed in a database or watch list. A security clearance may also be sought if you 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). Some security clearances get resolved in a matter of weeks, but in some cases, your clearance could take several months or longer.
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. For example, if your start date is October 1, 2011, you can enter as early as September 21, 2011. 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.
If you have questions about travel or other issues for F-1 students changing status to H-1B, please contact your designated Fragomen professional.