I have been working pursuant to the optional practical training (OPT) authorization, which will expire in June. My brother in India is getting married in late April, and I would like to travel home for about a week to attend his marriage ceremony. …

… My employer told me that they would file my H1B petition requesting a change of status to H1B and that I can continue working based on the cap-gap rule until the requested start date of October 1st. Will I be able to come back to the U.S. to continue working in these circumstances?

Answer

Generally, students with current OPT authorization and a valid EAD can be admitted back into the U.S. after travel abroad to continue their OPT employment. However, travel outside of the U.S. would result in abandonment of a change-of-status request that was pending as of the date of your departure. Because the cap-gap benefit requires a pending or approved H1B petition with a change-of-status request, your departure after the petition is filed (assuming it is filed in the first week of April, six months prior to October 1st), would result in an abandonment of the change-of-status request and ineligibility for the cap-gap benefit. Therefore, in this situation, you would only be eligible to be admitted to continue your employment through the expiration of your EAD, after which you could stay in the U.S. during the additional 60-day grace period. Therefore, unfortunately, in this scenario you would lose your eligibility for the cap-gap employment. (01.Feb.2016)

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