Impact of International Travel on F-1 to H-1B Change of Status Petitions
Posted on February 13, 2015 by Littler Mendelson
By Kristin A. Meister
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.
Read the rest of the article here.