For many foreign students in F-1 (Student Visa) status, being sponsored by an employer for an H-1 B Visa is a popular option. New H-1B status generally begins October 1, 2013. The delay in beginning H-1B status can create travel and re-entry issues for persons in F-1 (OPT, Optional Practical Training) status, often referred to as the “cap gap" extension period, requiring these persons to wait until October 1, 2013, to re-enter the U.S.
What are the Student’s General Responsibilities While in OPT?—Maintaining SEVIS Records
While on Post-Completion OPT, you are still on an F-1 student visa and you are still a student at your university for visa purposes. You are responsible for communicating the following information to the Designated School Official (DSO) during your time of OPT:
A. You must update your local and international addresses as discussed below.
B. You must update your employer information as discussed below.
C. If you have changed your visa status, you must provide the DSO the copies of your Approval Notice from USCIS indicating your new visa status or your I-94 card and visa stamp indicating the new visa status. This must be done within 10 days of receiving the documents from USCIS or re-entering the US. DSO will then COMPLETE your SEVIS record.
D. Finally, when you have completed your OPT or if you leave the US and do not intend to return to use the remainder of your OPT, you should notify your DSO within 10 days of leaving the US or finishing OPT.
The DSO is required to update SEVIS with your employer information. You need to inform the DSO of your employer name, physical address, employment start date and phone number within 10 days of beginning employment on OPT. You will also need to notify the DSO when you terminate employment or if you change your employer.
Travel When in OPT
A. Until your graduation date You will travel as you always have as a student, even if you have filed for OPT*. The documents you travel with are:
*Filing for OPT has NO effect on your ability to travel before your graduation date. B. After your graduation date You will transition from an F-1 student status to a status of an F-1 doing OPT. This means you must present to the border officials all the documents listed ABOVE that you carried as a student—AND:
EAD Card [EAD states says “Not Valid for Re-entry." EAD alone is not sufficient for re-entry]; and,
EAD MUST be presented with aletter from your employer stating the job title, job description, beginning/end dates, and salary.
The following questions and answers are designed to help persons in F-1 (OPT) status, who will be able to begin H-1B visa status after October 1, 2013, formulate travel plans.
Can I travel abroad while my H-1B petition, with a request to change from F-1 status to H-1B status, is pending with the USCIS?
If traveling before the H1B petition approval, avoid "abandonment" of the request to change status from F-1 to H1B. Though the H1B petition might still be approved, you would need to leave the U.S. again and apply for an H1B visa at the U.S. Consulate abroad to return to the states in H1B status. This could delay your return to the U.S. and you would have to obtain a valid H1B visa stamp in your passport at the U.S. Embassy or Consulate, prior to returning to the U.S. no earlier than 10 days before your H-1B employment starts. If you decided to come back in F1 status, your employer would have to submit a new petition to the USCIS with a request to change your status to H1B after you return.
I am still in school and have not applied forOptional Practical Training(OPT). My H1B petition has been approved with a start date of October 1, 2013. Can I travel abroad before October 1, 2013?
It depends on whether you are in F1 status or in “cap-gap" extension coverage before you start your H1B employment on October 1, 2013.
If you maintain your F1 status and your course of study continues until September 30, 2013, you should be able to travel abroad and use a valid F1 visa to return to the U.S. in F1 status. Otherwise, it is advisable that you remain in the U.S. during the cap-gap period. If you plan to return in F1 status, you might be questioned about your nonimmigrant intent and will have difficulties with getting a new F1 visa at a U.S. Embassy or Consulate and admission at the port of entry. Please remember to carry the required documents with you when you travel, your original passport valid for more than six months, and your Form I-20 endorsed for travel. Also note that you may need to pay the mandatory SEVIS I-901 Fee and bring a copy of your SEVIS fee payment receipt with you when applying for your F1 Visa at a U.S. Embassy or Consulate and when entering the U.S.
I have finished my F1 study without applying for OPT or my OPT has expired. My H1B petition with a request for change of status to H1B starting from October 1, 2013 was filed when I was in F1 status or during the 60-day cap gap grace period or before my OPT expired. May I travel abroad before October 1, 2013 and come back to continue working during a cap-gap extension period?
You may still be eligible to remain in the U.S. or work during the cap-gap extension period until October 1, as long as the petition to change your status to H-1B is approved and your H1B was subject to cap and filed before your F1 status (including 60 day grace period) or OPT expired. If you are eligible for cap-gap extension coverage, it is best for you to remain in the U.S. during the cap-gap period. If you travel abroad before October 1, 2013, you can only come back in H1B status and cannot be readmitted in F1 status. You will lose your cap-gap benefits and have to wait for your H1B to be approved and apply for an H1B visa at a U.S. Embassy or Consulate abroad to come back no earlier than September 20, 2013. When you plan your foreign travel, you should consider the delay of return and possible missing work days.
My change of status to H1B has been approved and is valid beginning October 1, 2013. My OPT is also still currently valid. Can I travel abroad before October 1, 2013 and return in F1 status? When will my H1B status start after I come back to the U.S.?
Yes, if your OPT is valid on or after September 30, 2013 and your petition for change of status to H1B has been approved before you leave, you can return to the U.S. in F1 status with a valid F1 visa stamp and required documents (see below). Please note that your time spent outside of the U.S. will be counted against the unemployment period during OPT, which is no more than 90 days (or 120 days for F1 students who have received an OPT extension based on STEM degree). Your H1B status will start from October 1 as long as you return to the U.S. before that time.
I have applied for an H1B change of status petition and plan to travel abroad and obtain an F1 visa at the U.S. Embassy or Consulate abroad to reenter the U.S. on F1 status. What should I consider during the visa issuance at the U.S. consulate and F1 admission at the port of entry?
Please see the above listed questions to determine if you are eligible to come back in F1 status. Before you travel, you should bring the required documents and expect possible delays and difficulties with getting a new F1 visa and admission in F1 status. If you are an F1 student who is still in school, you need to make sure that you are carrying a valid passport with a valid F1 visa, Form I-20 that is endorsed for travel, and SEVIS fee payment receipt. If you are in valid OPT status, you also need to bring your valid EAD card and an employment verification letter from your OPT employer.
My H1B Change of Status petition has been approved. When can I apply for an H1B visa at a U.S. Embassy or Consulate abroad and enter the U.S. in H1B status if I travel abroad before October 1, 2013?
You may apply for your H1B visa at a U.S. Embassy or Consulate up to 90 days before your requested start date in H1B petition. If your approved H1B starts from October 1, 2013, you would be able to apply for your H1B visa at a U.S. Embassy or Consulate abroad up to 90 days in advance, i.e., no earlier than July 3, 2013. Once you get the H1B visa stamp in your passport, be sure to check your H1B visa expiration date as this might be different from the end date shown on the H1B approval notice. Please note that you can only enter the U.S. up to 10 days before your H1B effective date (no earlier than September 21, 2013 if your H1B start date is October 1, 2013). Also, your H1B visa stamp has to be valid on the day when you enter the U.S. Though you may come to the U.S. up to 10 days earlier, you cannot start working during these extra days as they are just given to allow you to get settled in the U.S. You need to wait until your H1B start date as shown on the approval notice to start your employment.
Note: This information is offered for educational purposes only; and, is not, and should not be considered, legal advice. No attorney-client relationship is created unless we have a signed engagement letter.
Gerald Goulder is a North Carolina immigration lawyer and has been a licensed attorney for 30 years and practices exclusively immigration law for clients throughout North Carolina, the United States and the world. Gerald Goulder has broad experience with family-based permanent residence (“green cards"), employment-based green cards, naturalization and citizenship, employment and work visas like H-1B visas, permanent residence strategies for physicians, and I-9 employment eligibility verification.
Mr. Goulder provides initial consultations in his office and by telephone for a nominal charge. Contact Gerald Goulder through his website ( www.gouldervisa.com) or by phone at (336) 808-1119.