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H1B has been approved, can I leave U.S in Cap-Gap Status and return before September 20th?

Ventura, CA |

There is some emergency happened in my family, I have to go back to China now. My H1B has been approved, but my F1 visa and EAD card both are expired, I am under Cap-Gap status now. Someone told me I have to apply for new working visa, and the earliest day is 10 day before H1B become effective, which is September 20th. Is it possible that I can return to US before September 20th? Thank you !

Attorney Answers 3


  1. If you depart the US now, the earliest you'll be able to return if your H-1B visa application will be approved at the consulate is September 20th. Not before. By law you can only be admitted into the US in a new visa classification only 10 days before the visa stamp's validity date. Not before.

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  2. If you leave, September 20 is the earliest you can reenter the US.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  3. The actual H-1B visa can only be issued up to 10 days prior to October 1 2013.

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