Travel Tips for F-1 Students on OPT or Planning a Change of Status to H-1B

Published: 02/11/2019

Source: http://bit.ly/2tiKLYc

Traveling abroad after filing a Change of Status to H-1B

 I am an F-1 student and my H-1B petition and application to change status to H-1B will be filed with USCIS on April 1.   May I travel internationally while they are pending? 

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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. 

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. While USCIS may still approve the H-1B petition itself, you would not automatically change from F-1 to H-1B status on October 1. Instead, you would have to leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permissible, 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 Questions 14 and 15 for more information about the visa application process. 

I am an F-1 student who is still in school.  I am not applying for Optional Practical Training, but I will be the beneficiary of an H-1B petition. 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 by the time you travel, see Question 10.) 

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. If your F-1 visa is no longer valid, you will need to get a new one to reenter in F-1 status.  You should expect delays during the visa application process. If you have an approved H-1B petition, it may be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 14 for more information about these issues. 

 I have completed my F-1 academic studies and am not applying for post-completion Optional Practical Training. After my H-1B petition and change of status are approved, will I be able to travel abroad? 

If you have competed your studies, have not applied for OPT, and then travel travel abroad, you will not be able to return to the United States in F-1 status. However, if your H-1B petition and application to change status to H-1B are filed before your F-1 status expires, you can remain in the United States during the cap gap period between the end of your F-1 period of stay (including 60-day grace period) and October 1. 

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 until October 1. See Questions 14 and 15 for more information about H-1B visa application procedures and possible delays. 

I am a J-1 exchange visitor who is the beneficiary of an approved H-1B petition for employment starting October 1, 2016. May I remain in the United States until then?

It depends. Unlike F-1 students, J-1 exchange visitors are not eligible for cap gap benefits.  As a J-1 exchange visitor, you are authorized to remain in the United States for the duration of your exchange program, plus a grace period of 30 days. If your J-1 period of stay and grace period end before September 30, 2016, you must depart the United States and apply for an H-1B visa abroad. You are not eligible for a change of status to H-1B because there will be a gap between the end of your period of authorized stay and the day your H-1B petition takes effect. 

However, if your J-1 period of stay (including grace period) remains valid through the start date of your approved H-1B petition and application to change status, you may remain in the United States in J-1 status until your change of status takes effect. 

Note that if you are a physician who was on a J-1 visa and obtained a waiver of the two-year home residency requirement, you can only apply for a change of status to H-1B if your waiver was based on a Conrad 30 application. Otherwise, you must leave the country and apply for an H-1B visa abroad before commencing H-1B employment. 

 I am an F-1 student awaiting a change of status to H-1B 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 if you have completed studies and OPT and you travel abroad during the cap gap, you cannot be readmitted to the United States in F-1 status. 

If you must leave the United States, you will have to wait to apply for an H-1B visa to return. You will not be able to work again in the United States until October 1. See Questions 14 and 15 for more information about H-1B visa application procedures and possible delays. 

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, if you are in a valid period of OPT (whether it is an initial grant or a STEM extension), have a valid EAD, and 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 is 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 in order to reenter in F-1 status:
  • A valid passport;
  • A valid F-1 visa stamp (unless you are a Canadian). If you 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 14 for more details); 
  • A Form I-20 that is endorsed for travel by a designated school official; 
  • A valid EAD. If you are applying for an extension of your OPT on the basis of a degree in a designated STEM field, you should not leave the United States until you receive your new EAD for the extension period (see Question 7); and 
  • 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.  You may not be able to return to the United States unless and until you obtain an H-1B visa. 

Be sure to keep track of the number of days you spend outside the United States as this travel time will be counted against the regulatory limit on unemployment during the OPT period, unless the travel takes place during leave authorized by your OPT employer or as part of your OPT employment.  As indicated in Questions 1 and 6 above, current USCIS rules require an F-1 student to have no more than 90 days of unemployment during an initial grant of OPT, and no more than 30 days during an OPT extension based on a STEM degree, for a maximum cumulative period of 120 days of unemployment. 

Before October 1, I plan 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 when you apply for a new F-1 visa and when you are inspected at the border. 

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 travel watch lists, the State Department may not be able to issue a visa until it confirms that you are not the same person as an individual who appears on a security 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 after you complete your studies and any temporary status granted to you. 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 feels convinced that you will not return to your home country, 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. 

 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? 

State Department rules allow you to apply for your visa up to 90 days before your H-1B petition start date. If your start date is October 1, 2016, you would be able to apply for your H-1B visa as early as July 3, 2016. But procedures differ among U.S. consulates, so 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 14, if your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department may not be able to issue your visa until it confirms that you are not the same person as a listed individual. A security clearance may also be required if you will 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). Security clearances typically get resolved in a matter of weeks, but can take several months or longer depending on the circumstances. 

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. If your start date is October 1, 2016, you can enter as early as September 21, 2016. 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. 

Source: http://bit.ly/2tiKLYc

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