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For F-1 students who are applying for change of status to H-1B status you need to be careful about traveling outside the United States between the time of filing on April 1 and the H-1B start date on October 1, 2014.  There are risks involved in traveling internationally depending on whether you are on Optional Practical Training, are still completing your  studies or whether you have “cap gap” protection between the time of filing and October 1.

The best advice is to postpone your traveling internationally if possible.until after October 1. If you cannot postpone your travel, then you should be aware that you may not be allowed to reenter the United States on F-1 visa status during the months while your H-1B is pending with the Immigration Service. You may need to wait overseas until after your H-1B classification is approved and then apply for the H-1B visa stamp at the American Embassy in time to return to start your employment on or after October 1.

Abandonment of the change of status:

If you filed for change of status to H-1B on April 1, and wish to travel internationally and return while your H-1B petition is pending. The basic immigration rule is that once you leave the United States, the change of status portion of the petition is abandoned. The H-1B classification portion can still be approved, but you will have to remain overseas until your H-1B case is approved and you can apply for the H-1B visa stamp at the American Embassy or Consulate.

You wish to travel, but your OPT card will expire before October 1:

As long as your OPT expired after you filed for change of status to H-1B visa, then you receive “cap gap” protection and your OPT is automatically extended and you are permitted to remain in the US and continue working through Sept 30.  However, if your OPT has expired and you travel abroad during the cap gap, you cannot be readmitted to the U.S. in F-1 status. You will have to remain outside the U.S. and apply for the H-1B visa stamp before your return.

What if you are abroad and your H-1B gets approved early?

If you traveled abroad and your H-1B case gets approved early, you can apply for the visa stamp at the American Embassy or Consulate prior to Oct 1. Once you have the H-1B visa stamp in your passport, you can return to the U.S. 10 days in advance of the Oct 1 H-1B start date, or on Sept 21 at the earliest. But you cannot begin to work until October 1.
However, if you travel abroad during the processing time, you also risk being stuck overseas until the visa petition process is completed. In some cases, adjudication of an H-1B petition can extend beyond October 1, especially when USCIS issues a request for additional evidence, thus delaying your return, sometimes for a considerable length of time.

Can you travel internationally if you still have a valid F-1 visa stamp and are still enrolled in school, and/or have a valid OPT card?

Once the H-1B change of status is approved, you are technically permitted to travel and return to the U.S. as an F-1 student as long as you have all necessary documents.  However, once your H-1B is approved, you will have a difficult time explaining your nonimmigrant intent to the immigration inspectors at the airport, which is a requirement for entering as an F-1 student.

What if you are a J-1 exchange visitor who has applied for change of status to H-1B visa classification and wish to remain in the United States until October 1.

In this situation, the J-1 exchange visitor is allowed to remain in the U.S. for the duration of their J-1 program plus 30 days of grace period. If the J-1 period of stay plus grace period ends before October 1, there will be a gap in your status. As such, you will need to depart from the United States by the end of your 30 day grace period, and apply for the H-1B visa stamp overseas at the American Embassy of Consulate.

Richard A. Newman
Attorney At Law
rnewman@richardnewmanlaw.com