H1B Transition Issues: International Travel

It is the time of year when many former F-1 students are preparing to transition to H1B status. During this period, many F-1 students wish to travel abroad to visit family and friends, leading to questions about how such travel may affect their change to H1B status. This article serves as an overview of the most common travel concerns during this time.

F-1 Travel Prior to Start Date of Approved H1B

As a general rule, if one travels abroad while a change-of-status petition or application is pending, the change-of-status request will be deemed abandoned. But, 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 generally will not be abandoned. In this scenario, 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 they departed, and this return must occur prior to the start date of the approved H1B change of status.

Travel on OPT Transitioning to H1B Petition

For transitioning students who are currently working pursuant to OPT or STEM OPT, there are some additional considerations when contemplating travel abroad. Students need to make sure that they have all necessary travel documents prior to departure.

A student must at least have the following valid, unexpired documents: F-1 visa “stamp,” EAD card, passport, and a form I-20 endorsed for travel within the preceding six months. There is guidance indicating it is permissible to travel while the EAD application remains pending, but there have been reports of F-1 students running into difficulties at U.S. ports of entry based on lacking the approved EAD. To reenter in F-1 OPT status, the student also must have a job or job offer when departing 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. 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.

Avoid 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. Students in this situation should consult with a qualified immigration attorney prior to planning any travel abroad.

Conclusion

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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