If you are an F-1 student and an H-1B cap petition to change status to H-1B has been filed on your behalf, traveling internationally could impact your ability to change status and reenter the United States. It is very important to consult with an immigration attorney before departing from the U.S. if you have a pending petition with USCIS.
What happens if you leave the United States before your H-1B Change of Status Petition has been approved?
The H-1B Change of Status Petition has 2 components: 1) the component conferring H-1B status, and 2) the component changing your status. If you leave the U.S. while your H-1B petition is pending, USCIS may approve the component conferring H-1B status, but the change of status component will be considered abandoned, and your status would not automatically change from F-1 to H-1B on October 1, 2018. Instead, you would have to leave the United States before commencing employment in H-1B status to apply for an H-1B visa at a U.S. consulate. If you apply for an H-1B visa abroad, you could be subject to a long wait times during the visa application process, which could delay your ability to begin your H-1B employment on time.
If you have not yet completed your studies, you should be able to reenter the United States in F-1 status to resume your studies, even if you leave while the H-1B petition is pending. However, you would not be eligible to continue working under the Cap-Gap extension provision. When you travel, make sure you have a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel. You may (but not likely) be subject to greater scrutiny about nonimmigrant intent based on the filing of the H-1B petition. For more information about nonimmigrant intent, please click here.
If you have completed your studies and have not applied for OPT, you will not be able to return 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 in order to return. The U.S. Department of States allows you to apply for your H-1B visa stamp up to 90 days before your H-1B petition start date. But procedures may differ among U.S. consulates, so you should check the specific instructions of the consulate where you will apply. Once you receive your H-1B visa stamp, you may enter the United States up to 10 days before your H-1B petition start date.
What happens if you leave the United States after H-1B petition approval?
If you are an F-1 student in a valid period of OPT, you should be able to return to the United States in F-1 status. You must be able to show immigration officers that you intend to comply with F-1 rules (e.g., abiding by the terms of your OPT), including having nonimmigrant intent (i.e., ties to your home country). For more information about nonimmigrant intent, please click here. You will need the following documents in order to reenter in F-1 status: 1) a valid passport with a valid F-1 visa stamp; 2) Form I-20 that is endorsed for travel/OPT by your DSO within the last 6 months; 3) a valid EAD card; and 4) a letter from your OPT employer that verifies your employment. If you do not have a valid job offer, you may not be readmitted and your OPT may be terminated.
If you are an F-1 student and your OPT period has expired, but your H-1B was filed before your OPT EAD expired, you will receive a cap-gap extension of stay and work authorization through October 1, 2018. For more information about the cap-gap provision, please click here. You will be permitted to travel abroad and return to the United States in F-1 status before October 1, even if your OPT EAD is no longer valid on its face. Please note that you will be able to seek readmission to the U.S. in F-1 status during a Cap-Gap period only if your H-1B change of status petition has been approved prior to departure. In order to return, you must have the following: 1) a valid passport with a valid F-1 visa stamp; 2) Form I-20 that is endorsed within the last 6 months for travel/cap-gap extension of stay and work authorization; 3) your expired EAD card, and 4) a copy of your H-1B petition and approval notice.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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