Travel issues for F-1 students selected in the H-1B lottery

May 30, 2017

Immigration Law Alert | International Travel Series

Author(s): Jason Gerrol

For F-1 students who have been selected in the H-1B lottery, there are travel rules and restrictions that are unique to F-1 students. Here is a brief overview to help navigate those rules and restrictions.

Every year, thousands of recent college graduates in F-1 student visa status await news of whether or not their H-1B petitions were selected by U.S. Citizenship and Immigration Services (USCIS) in the lottery. For those selected, there comes the assurance of being granted at least an additional six (6) years to live and work in the U.S.

However, the relatively short period of time between filing for the H-1B in early April, and the effective date of the H-1B on October 1, 2017, is fraught with travel risks for the unwary F-1 student.

Below are some helpful travel guidelines for F-1 students selected in the H-1B lottery. Prior to planning international travel, an F-1 student should still be sure to consult with his/her international student advisor/designated school official (DSO).

F-1 students and change of status to H-1B

When filing an H-1B petition, a petitioner can request either a change of status or consular notification. If the H-1B petition was filed requesting a change of status, the foreign national’s status will automatically change from his or her current F-1 status to H-1B status on October 1, 2017, if the foreign national is physically present in the U.S. There is no need to plan a special trip outside the U.S. to obtain an H-1B visa stamp, but if traveling internationally after October 1, 2017, an H-1B visa stamp will be required for return admission to the U.S. (and visa-exempt Canadians will need to travel with their H-1B approval notice).

International travel prior to the approval of the H-1B change of status petition will constitute an abandonment of the change of status request. The H-1B petition will not be denied, but the petition will automatically revert to consular notification (discussed below). For F-1 students relying on “cap gap” employment authorization, the change of status abandonment will also result in the cancellation of “cap gap” employment authorization, leaving the student without both employment authorization following the expiration of their Employment Authorization Document (EAD) and lawful status in the U.S. beyond the F-1 60-day grace period.

If “cap gap” does not apply, as a general rule, an F-1 student may travel internationally and return to the U.S. prior to October 1, 2017, using his or her valid, unexpired F-1 visa stamp, unexpired EAD, and endorsed Form I-20. However, as October 1, 2017, approaches, there will be an increasing risk of a Customs and Border Protection (CBP) Officer refusing to allow entry using the F-1 visa stamp (even if valid), and instead requiring entry using an H-1B visa stamp.

“Cap gap” and change of status

For F-1 students whose period of authorized Optional Practical Training (OPT) does not extend to October 1, 2017, they may qualify for “cap gap” employment authorization, which automatically extends employment authorization from the date of EAD expiration to the effective date of the H-1B (October 1, 2017).

To be eligible for “cap gap,” the H-1B petition must have been filed requesting change of status, resulting in the inability to travel internationally during the period the H-1B petition is pending. In addition, USCIS has confirmed that an F-1 student cannot travel internationally during the cap gap period (i.e., after the date of EAD expiration). As a result of both travel restrictions, an F-1 student relying on “cap gap” cannot travel internationally and return to the U.S. in F-1 status prior to October 1, 2017.

If an F-1 student relying on “cap gap” must travel internationally prior to October 1, 2017, he or she will need to apply for an H-1B visa stamp at a U.S. Consulate abroad prior to returning to the U.S. The immigration regulations will allow the student to enter the U.S. using his/her H-1B visa stamp up to 10 days prior to October 1, 2017 (i.e., September 21, 2017), but he/she will not have employment authorization during that 10-day period.

F-1 students and consular notification

If the H-1B petition was filed requesting consular notification (or perhaps reverted to consular notification due to abandonment of a change of status request), the F-1 student must take the affirmative step of departing the U.S., applying for an H-1B visa stamp at a U.S. consulate abroad and returning to the U.S. using that H-1B visa stamp on or after October 1, 2017, in order to “activate” his or her H-1B status.

The timing for when the F-1 student must depart the U.S. and activate the H-1B will vary. If the F-1 student is currently working for the same employer who sponsored his or her H-1B, then the student may wish to utilize his or her entire period of OPT prior to activating the H-1B. In addition, F-1 students who graduated with a degree in a STEM field (science, technology, engineering, math), may be eligible for an additional two-year OPT period, and may opt to remain in F-1 status for the duration of the STEM OPT period prior to activating his or her H-1B.

In all cases, the F-1 student should be sure to communicate with both his or her sponsoring H-1B employer and DSO regarding options to remain in F-1 status and the appropriate time to activate the H-1B.

While applying for the H-1B visa stamp at a U.S. Consulate in Canada may be a convenient option, it is generally best to plan on applying for the H-1B at a U.S. Consulate in the student’s home country.

Canadian F-1 students

All of the above travel rules and restrictions also apply to Canadian citizens. Although Canadian citizens are visa-exempt, and do not need to apply for an H-1B visa stamp, the rules pertaining to “cap gap” employment authorization and the timing of international travel still apply.

H-4 status for spouse and children

Unless a foreign national’s spouse maintains his or her own independent non-immigrant status, he or she and any dependent children will need to assume H-4 visa status at the same time the foreign national obtains H-1B visa status.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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