Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Employers who employ F-1 students who will soon seek to change their status to H-1B visa holders should be aware of the potential implications and risks on the H-1B visa process stemming from F-1 employees’ international travel.
The following discussion addresses typical scenarios and questions that arise relative to an F-1 employee’s intended international travel. Please note that these examples are intended to be illustrative of typical scenarios and that our discussion of them is not intended to be legal advice. F-1 visa holders should always consult with their immigration professional prior to embarking on any international travel.
Scenario 1: Your employee is an F-1 student, and his optional practical training (OPT) will expire after April 1, 2015. As an employer, you intend to sponsor him for an H-1B visa. What are the implications to his status if he travels outside the U.S. prior to October 1, 2015?
As long as the H-1B visa petition is filed before the employee’s OPT expires, she can remain in the U.S. and continue to work pursuant to the “cap-gap” provisions even after the OPT period is expired. The period of time between the expiration of the OPT employment authorization and October 1 is commonly referred to as the cap-gap period. If the employee departs the U.S. during the cap-gap period, he will not be permitted to return to the U.S. in F-1 student status with an expired OPT. It should be noted that the cap-gap provision is only applicable where the H-1B petition is filed and selected when an H-1B lottery is applicable. A random lottery for H-1B petitions is held when more visa petitions are filed than the allotted 85,000 visas per fiscal year.
Additionally, U.S. Citizenship and Immigration Services (USCIS) generally considers a change of status petition, such as a request to change visa classifications from F-1 to H-1B, abandoned if the beneficiary departs the U.S. prior to the approval of the petition. In this case, the beneficiary/employee will be required to apply for his H-1B visa at a U.S. Consulate abroad and will become admissible to the U.S. no sooner than 10 days prior to the October 1, 2015 effective date of his H-1B petition. In general, an F-1 student with expired OPT and a pending H-1B change of status petition should not travel internationally.
Scenario 2: Your employee has a valid, unexpired OPT (evidenced by an unexpired employment authorization card) and has an approved H-1B change of status petition. What impact will international travel have on his petition?
In general, an employee with valid, unexpired OPT and an approved H-1B visa petition may travel internationally and return to the U.S. in F-1 status without impact to the H-1B change of status petition. Prior to departure, the employee must make certain that he has the following items:
- A valid, unexpired passport
- A valid, unexpired F-1 visa stamp issued in the employee’s passport
- Form I-20 endorsed for travel by the employee’s designated school officer (DSO) within the last 6 months
- A valid, unexpired employment authorization document (EAD)
- An employment verification letter confirming the employee’s employment with your organization.
Scenario 3: Your employee has applied for a 17-month extension of his OPT based upon attainment of a degree in science, technology, engineering, or mathematics. However, he has not yet received the new EAD. Can he depart the U.S. before receiving the new EAD card?
No, your employee should not depart the U.S. until he has received his renewed EAD card from USCIS. 8 CFR 214.2(f)(13) governs an F-1 student’s temporary absences from the U.S. and requires that the student have unexpired employment authorization. In addition, per U.S. Immigration and Customs Enforcement’s policy guidance, which expands on this regulation, an F-1 visa holder must have received a new EAD prior to departure from the U.S., in order to be able to re-enter the U.S. from abroad.
The impact of international travel on your employee’s visa process is complex and risky. Employers may also incur unnecessary expenses when appropriate precaution is not exercised.
Littler’s Immigration Practice Group can respond to questions regarding the consequences of international travel on U.S. immigration status.