Also refer to Questions 1 – 6 if you are selected in the H-1B cap lottery and you need to travel before an H-1B cap petition and application to change status are filed on your behalf. If you decide to travel in this scenario, keep in mind that you must be physically present in the United States when your employer files your H-1B change of status petition with USCIS. Also note that in order to preserve cap-gap benefits, your change of status petition must be received by USCIS while you are still in a period of valid F-1 status. To extend work authorization under the cap gap, the petition must be received at USCIS while your OPT is still valid.
Please see Questions 8-16 if you are selected in the H-1B cap lottery and need to travel after your employer files a change of status petition on your behalf.
8. I am an F-1 student and an H-1B cap petition and application to change status to H-1B have been filed on my behalf. May I travel internationally while they are pending?
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 before you begin H-1B employment on October 1 (or later depending upon the employment start date requested by your H-1B employer).
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. USCIS may still approve the H-1B petition itself, but you would not automatically change from F-1 to H-1B status on the start date of your approved H-1B petition. 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 13 – 15 for more information about the visa application process.
Unless you are in a cap-gap period (see Question 11), you should be able to reenter the United States in F-1 status prior to your H-1B employment start date to resume your F-1 activities, though you may be subject to greater scrutiny about nonimmigrant intent based on the filing of the H-1B petition. See Question 13 for more information about this issue.
9. 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 cap petition. After my H-1B petition and application to change status are approved, can I travel abroad before my H-1B employment start date?
After your change of status is approved but before it takes effect, 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, a valid F-1 visa stamp (unless you are a visa-exempt Canadian), 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, as detailed in Question 15.
Keep in mind that you may be subject to greater scrutiny about your nonimmigrant intent based on the filing of your H-1B petition. See Question 13 for important information about this issue.
10. 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 and have not applied for OPT, you will not be able to return to the United States in F-1 status after international travel. 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 your H-1B cap petition and change of status remain pending at USCIS beyond October 1, you can remain in the United States through the adjudication of the filings but you may not begin work until your cap petition and change of status are approved and take effect.
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 in H-1B status until the H-1B employment start date requested by your employer. See Questions 13 – 15 for more information about H-1B visa application procedures and possible delays.
11. I am an F-1 student awaiting a change of status to H-1B and my OPT expired after my change of status was filed. During the cap gap, can I travel internationally after my change of status is approved and reenter before October 1?
USCIS permits cap-gap travel in certain circumstances. However, you must be sure to have the appropriate documentation and be prepared to demonstrate that you intend to comply with F-1 rules, including having nonimmigrant intent and the intent to return to pursue legitimate F-1 activities. This is especially true if you will need to apply for a new F-1 visa in order to return to the United States. See Question 13 for important information about establishing nonimmigrant intent and Question 15 about visa processing delays.
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 Canadian);
- A Form I-20 Certificate that has been endorsed for travel by your DSO in the last six months and for a cap-gap extension of stay and work authorization;
- Your expired EAD; and
- A copy of your H-1B petition and approval notice.
If you travel abroad before your change of status to H-1B is approved, you will be unable to return in F-1 status and will need to take extra steps to assume H-1B status; see Question 8.
12. 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?
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 your U.S. departure, you should generally be able to return to the United States in F-1 status if you are returning to the U.S. before your H-1B change of status takes effect. You must have the appropriate documents and be able to show visa and immigration officers that you intend to comply with F-1 rules, including having nonimmigrant intent. See Question 13 for important information about establishing 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 significant delays at many U.S. consulates and additional questioning at the port of entry regarding nonimmigrant intent (see Questions 13 – 15 for more details);
- An OPT-endorsed Form I-20 that has been endorsed for travel by your DSO in the last six months;
- 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 carry evidence of your timely filed EAD extension; 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 unemployed 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 5 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 for students who have been granted a 24-month OPT extension based on a STEM degree, the foreign national is limited to no more than an aggregate of 150 days of unemployment over the combined 36-month initial and STEM OPT periods.
13. Before my H-1B change of status takes effect, I plan to leave the United States and reenter in 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?
If you have an approved H-1B change of status and choose to travel abroad before it becomes effective, 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, officials at U.S. consulates and the U.S. border may question whether you have nonimmigrant intent, i.e., whether you genuinely intend to leave the United States 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 may become aware that you have a professional job in the United States – a possible indication of strong ties to the United States and potentially lessened ties to a residence abroad. If a consular or border officer believes that you do not have the present intent to leave the United States after you have completed your F-1 activities, 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.
Second, 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. If this occurs, your reentry to the United States could be delayed.
Third, as with any visa application, COVID-19 security protocols at U.S. consulates may significantly delay your ability to obtain a visa and return to the United States. See Question 15.
14. If I decide to leave the United States before my H-1B employment start date, how soon can I apply for my H-1B visa and enter the United States in H-1B status?
U.S. consulates differ on how far in advance of an H-1B start date they will permit submission of an H-1B visa application, but in general, if your start date is October 1, 2022, you should be able to apply for your H-1B visa as early as July 3, 2022. Because procedures differ among U.S. consulates, especially during the COVID-19 pandemic, 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 https://www.usembassy.gov/.
Once you have applied for your H-1B visa, be prepared for a possible security clearance and visa issuance delays. As discussed in Question 13, 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. See Question 15 for information on U.S. consular delays due to COVID-19 safety protocols.
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, 2022, you can enter as early as September 21, 2022. The extra ten days allows you to get settled in the United States, but you cannot engage in H-1B or any other work during this time. You are not authorized to start your H-1B employment until your actual petition start date.
15. How do COVID safety protocols at U.S. consulates affect my ability to get a new visa?
If you will need to apply for a visa to reenter the United States, you must be prepared for the possibility of very lengthy waits at U.S. consulates and delays in your ability to resume F-1 activities or begin H-1B employment. You should carefully consider these potential delays when deciding whether to travel abroad. Discuss your travel plans and visa needs with your employer and your Fragomen professional before making travel reservations.
Because of the COVID-19 pandemic, consulates are operating at reduced capacity, including very limited availability of in-person visa appointments. It can take several months or more to secure a visa appointment; even if you are successful in booking an appointment, it could be cancelled by the consulate with little or no notice.
However, you may be eligible for a waiver of the in-person appointment if you are applying in your home country and are renewing an F-1 visa stamp and your previous F-1 visa is still valid or expired within the last 48 months. In addition, under temporary measures intended to reduce backlogs at U.S. consulates, certain foreign nationals applying for an F-1 or H-1B visa in their country of nationality or residence may be eligible for an interview waiver at certain consulates if:
- You have been previously issued any type of U.S. visa and have never been refused a visa (or the visa refusal was overcome or waived); OR
- You are a first-time visa applicant, have previously traveled to the United States with ESTA authorization under the Visa Waiver Program, and have never received an ESTA denial.
Not all U.S. consulates offer interview waiver options and some offer the option only to a narrow subset of those who may be eligible under the new policies. Further, interview waivers are granted in the discretion of the consulate, meaning that you could be required to attend an interview even if you meet the criteria for an interview waiver. If you must attend an interview, you are likely to be subject to a lengthy wait for an appointment.
Whether or not you are required to attend an interview, your visa application is subject to security checks. If you are subject to a security check because your name is similar to a name listed on a security watch list or the purpose of your travel raises concerns, you will not be eligible for an interview waiver, and your application may be subject to lengthy security clearance processing delays.
16. Must I comply with U.S. COVID-19 vaccination and testing requirements to return to the United States?
Yes. With very limited exceptions, foreign nationals entering the United States from abroad must (1) document that they have been fully vaccinated with an FDA or WHO-approved COVID-19 vaccine; and (2) obtain a negative result from a COVID-19 viral test taken within one day of departure for the United States or show that they have recovered from COVID-19 within 90 days of travel.
For more information on U.S. COVID-19 vaccination and testing requirements, see the website of the U.S. Centers for Disease Control and Prevention.
17. If I travel, should I be concerned about COVID-19 travel restrictions in my destination country?
Yes, nearly all countries and jurisdictions have implemented some combination of entry, quarantine, and sometimes exit requirements or advisories in response to the COVID-19 emergency. As such, you should research policies that apply to your destination before making any plans. The COVID-19 pandemic continues to be a highly fluid situation and policies can change with little or no notice. Fragomen’s COVID-19 website summarizes restrictions and requirements currently in place in over 150 jurisdictions. We recommend regularly checking this page for the latest immigration updates.
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