H1B Transition Issues: International Travel07 Jul 2016
It is the time of year when many former F-1 students are transitioning to H1B status. The Murthy Law Firm has some thoughts regarding travel considerations for F-1 students who need or want to go abroad while transitioning to H1B status. Many F-1 students wish to travel abroad to visit family and friends at some point during their F-1 status. Those who are transitioning to H1B status often inquire as to how travel will affect their change to H1B status. These concerns usually involve potential travel after the filing of the H1B petition, but prior to the requested employment start date.
F-1 Travel Prior to Start Date of Approved H1B
As a general rule, if one travels abroad while a change-of-status application is pending, the application for change of status will be deemed abandoned. If an H1B petition is filed requesting a change-of-status for a future start date, and the individual departs the U.S. after the case has been approved, then the change-of-status request will generally not be abandoned. However, in order to avoid abandoning the request for the change in status, the individual must return to the United States in the same nonimmigrant status held when s/he departed, and this return must occur prior to the start date of the approved H1B change of status.
It is the position of the U.S. Citizenship and Immigration Services (USCIS) that the last action taken on one’s status governs. In the context of travel after H1B approval, the last action is considered to be the start date of the H1B. This is explained in our article, Travel After Change-of-Status Approval with Future Start Date (02.Jun.2016).
Travel on OPT Transitioning to H1B Petition
The concepts and rules explained above are most commonly used by students working pursuant to Optional Practical Training (OPT). There are some additional considerations for such students when contemplating travel abroad. Students need to make sure that they have all necessary travel documents prior to departure.
A student at least must have the following valid, unexpired documents: F-1 visa, OPT card, passport, and a Form I-20 endorsed for travel. To reenter in F-1 OPT status, the student must have a job or job offer when s/he departs the United States and must be returning to work in the offered job.
Example: An employer files an H1B cap-subject petition for an F-1 student on April 1st. The H1B petition requests a change of status from F-1 to H1B, with a start date of October 1st. The student’s OPT is valid until November 30th. The H1B petition is approved on July 1st. The F-1 student leaves for travel abroad on August 1st and reenters the United States in F-1 OPT status on September 1st. Based on these facts, the change of status to H1B would take effect on October 1st, because the change of status on that date is regarded as the last action.
Be Cautious of Travel During H1B Cap-Gap Relief
As explained, travel on OPT requires a valid, unexpired OPT card. Some students have extended permission to work after the expiration of the OPT under what is known as “cap-gap” relief. These students may remain in the United States and benefit from cap gap. However, this option will be lost if they travel outside the United States. They would not be able to return to the U.S. to utilize the remaining F-1 OPT cap-gap time, as explained in the MurthyDotCom NewsBrief, Students Should Not Travel During Cap-Gap Period. Students in this situation should consult with a qualified immigration attorney prior to planning any travel abroad.
Students often use some of the time during their transition from school to professional employment to travel to their home countries. As explained in this article, this is an option for some students, but not for others. Students should seek proper advice regarding their travel plans, so that they can understand their options and risks. The attorneys at the Murthy Law Firm are available to provide this guidance.
Originally posted 26.May.2012, this NewsBrief has been updated for MurthyDotCom readers.
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