Foreign nationals who are currently employed pursuant to F-1 Optional Practical Training (OPT) and for whom and H-1B petition is being submitted under this year’s H-1B cap are advised to proceed with caution when planning international travel leading up to and following the H-1B cap filing window (which starts April 2, 2018). Depending upon when their OPT expires, when and how they plan to commence H-1B status, and whether they will require a new F-1 visa stamp before October 1st, travel may not be possible or may come at increased risk.
As a general matter, travel for F-1 students between April 1 and October 1 is not without risk. This largely results from the potential for confusion at the Port of Entry (POE) for returning F-1 students with pending or approved H-1B petitions where Customs and Border Protection (CBP) sees a pending or approved H-1B in their system. In such instances, CBP Officers often do not properly readmit students in F-1 status, which can result in unintentional loss of, or a gap in, employment authorization.
In light of the potential for confusion, any F-1 students engaged in international travel prior to October 1st must be prepared to present the following when returning to the U.S. in F-1 status:
- A valid passport
- A valid I-20 endorsed for travel;
- A valid F-1 visa stamp;
- A valid OPT EAD card*;
- Ensure that they remain active in SEVIS and authorized for travel;
- Proof of current employment (paystubs or company employment verification letter); and
- Proof of ties to their home country.
*In some cases, if your EAD has expired and your request for a STEM OPT extension remains pending with USCIS, you may be able to present your expired EAD along with proof that your STEM OPT extension was timely filed and is pending with USCIS for reentry in F-1 status.
That said, for certain F-1 students, travel between April 1 and October 1 is not always possible. We, therefore, outline below several factors that will impact an F-1 student’s ability to travel.
Note that this general guidance does not constitute specific legal advise and, given the extremely fact-specific nature of these cases, all F-1 students/employees are advised to consult with their school, their employer, and immigration counsel before planning any international travel between now and October 1, 2018.
Considerations for F-1 Students Relying on “Cap-Gap” for Continued Employment Authorization
By way of overview, “Cap-Gap” is the period of time between April 1st and October 1st when an F-1 student’s Optional Practical Training (OPT) work authorization has expired but their H-1B “Change of Status” petition is not yet effective, leaving a gap in their employment authorization. The current regulations provide for an automatic extension of OPT work authorization from April 1st through September 30th to F-1 students so long as they have a timely-filed pending or approved H-1B petition requesting a Change of Status from F-1 to H-1B. Timely-filed petitions include those that are filed (1) within the H-1B filing window (typically the first five (5) business days of April) and (2) are filed before the expiration of the F-1 student’s existing OPT (meaning the OPT EAD card must be valid at least until April 2).
F-1 students relying on Cap-Gap should be aware of the risks associated with international travel during this period. There are three main issues to be mindful of when considering travel during Cap-Gap:
- Travel Not Permitted While Request for Change of Status is Pending - If a foreign national travels while an H-1B Change of Status petition filed on their behalf is pending, the Change of Status request will be considered abandoned as of the date they depart the U.S. While the underlying H-1B petition can still be approved, denial of the Change of Status request means that their F-1 status will no longer change to H-1B automatically on October 1st and students will need to travel internationally and apply for an H-1B visa stamp prior to reentering the U.S. in H-1B status.
- Readmission Following H-1B Adjudication May not Be Possible - During the Cap-Gap period, F-1 students will typically lack the documentation needed for readmission to the U.S., which must be presented at the port of entry to gain admission to the United States in F-1 status and to resume OPT employment. Specifically, F-1 students who become eligible for a Cap-Gap extension of their OPT receive only a newly-endorsed Form I-20 from their Designated School Official (DSO) as proof of continued employment authorization and do not receive a new EAD card. Because a valid, unexpired OPT EAD card is required in order to be readmitted to the U.S. in F-1 status, Cap-Gap recipients will be unable to return to the United States following international travel under these facts.
- Travel May Result in Loss of Cap-Gap Work Authorization - F-1 students who abandon their change of status request and/or are unable to reenter the country in F-1 status due to lack of necessary documentation will, by extension, no longer be eligible for Cap-Gap work authorization and thus, will be required, in most instances, to remain outside the United States and apply for an H-1B visa stamp, which will permit reentry to the U.S. no earlier than September 21st and provide work authorization starting on October 1st.
In light of the above, travel during the “Cap-Gap” period will likely result in a loss of employment authorization until October 1, and thus, should be avoided.
Additional Considerations for Individuals Who Have Recently Applied or Plan to Apply for an new F-1 Visa Stamp Prior to October 1
New consular guidance makes it important for students to be aware of the risks of applying for a new F-1 visa stamp when their employer is currently pursuing H-1B sponsorship on their behalf. While the level of risk is a fact-specific determination, all F-1 students should be aware of the stricter interpretation of the F-1 regulations, which require F-1 students maintain an “intent to depart the United States” at the conclusion of their studies or period of OPT.
More specifically, the new consular guidance now directs consular officers to assess an F-1 student’s current plans following the completion of his or her F-1 study or OPT. As such, a current intent to engage in H-1B employment immediately following a period of F-1 OPT (as evidenced by an approved H-1B petition for change of status), may result in a refusal to issue an F-1 visa to students under these facts. That said, the guidance further states that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.” Therefore, in cases where international travel cannot be avoided, it may be prudent to Consular Process the H-1B filing rather than requesting an automatic “Change of Status”, which would have the effect of requiring the applicant to depart the U.S. in order to apply for an H-1B visa stamp in order to return in H-1B status. Individuals who are not requesting a Change of Status to H-1B would likely be able to point to the fact that they currently intend to depart the U.S. following the conclusion of their F-1 status.
Considerations for F-1 Individuals Requesting a Change of Status versus those Requesting Consular Notification
Change of Status
As explained above, individuals requesting a Change of Status to H-1B will have their status changed automatically from F-1 to H-1B by operation of law on October 1. For the reasons explained above, most individuals requesting a Change of Status will rely on Cap-Gap to remain employment authorized and, thus, will not be able to travel between April 1 and October 1 without losing employment authorization.
However, some students who are still enrolled in school or who have OPT EADs valid through September 30th have no such “gap” and, thus, are not considered to be in a Cap-Gap period prior to commencing H-1B status. Such individuals may have the ability to travel internationally prior to commencing H-1B status in certain circumstances but, as a result of new consular guidance discussed above, may be at increased risk of gaining reentry to the U.S. following the submission of an H-1B cap petition. This risk is further increased if such individuals will require a new F-1 visa stamp in order to be readmitted to the U.S. while abroad.
Individuals who do not need to rely on “Cap-Gap” for continued employment authorization between April 1 and October 1, may choose to forego a Change of Status request and, instead, opt to “Consular Process” their H-1B petition. As noted, this means is that their status will not automatically change from F-1 to H-1B on October 1st. Rather, in order for their H-1B status to commence, they must depart the U.S. and apply for an H-1B visa stamp at a U.S. Consulate. F-1 students who have the need for international travel between April 1 and October 1 and who do not need to rely on Cap-Gap to remain employment authorized may opt to Consular Process their H-1B petition to avoid the additional restrictions/risks associated with travel when requesting a Change of Status.
As a reminder, an individual’s ability to travel while undergoing sponsorship through the H-1B cap requires a case-specific determination and D&S recommends seeking individual legal advice to discuss the specifics of each case in advance of planning any international travel.