An informative post from the American Immigration Lawyer
AILA InfoNet Doc. No. 13051555 (posted May. 15, 2013)
Now that USCIS has completed the H-1B lottery, many F-1 students who filed H-1B petitions and were accepted as part of the lottery are eligible for cap-gap extension coverage. The cap-gap provision automatically extends until October 1, F-1 status and employment authorization for F-1 students who have a pending or approved H-1B petition.
Many F-1 clients may be wondering if they can travel during the cap-gap period. Though USCIS guidance is fuzzy, it appears that F-1 students will lose cap-gap benefits if they travel internationally during the cap-gap period. This means that if an F-1 student travels outside the United States during the cap-gap extension period, he or she will not be able to return to the United States in valid F-1 status.
Confusion about the ability to travel stems from the April 23, 2010 ICE policy guidance 1004-03, “Update to Optional Practical Training,” (AILA Document No. 10042761). This guidance explains that a student should not travel outside the United States during the cap-gap extension because USCIS considers an application to change status to be abandoned if the applicant leaves the country while the change of status is pending. However, the guidance does not address whether travel is permitted during the cap-gap period if the H-1B is approved. While this question remains unresolved, the best practice is to advise clients to remain in the United States during the cap-gap period.
- Travel Tip: An H-1B beneficiary may enter the United States up to 10 days prior to the start date, i.e. September 20. F-1s who wish to travel over the summer should plan to travel in September so that they can apply for the H-1B visa at a U.S. consular post abroad and return to the United States on or after September 20. However, it should be noted that the H-1B alien cannot start H-1B employment until October 1.
AILA Liaison, through its USCIS and Interagency Committees, and with other stakeholders, including NAFSA, intend to raise this issue for further discussion and clarification with USCIS headquarters.
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