By now, all employers should have filed their H-1B petitions for their employees who are subject to the cap for the upcoming fiscal year. While waiting for the October 1st start date, the employees often ask about travel during the summer before the H-1B becomes effective. The rules on travel during the “cap-gap” period are both obscure and a trap for the unwary.
For individuals on F-1 student status whose H-1B petitions have been selected and issued receipt notices, the Optional Practical Training (OPT) authorization is extended to September 30th so that there is no gap in employment authorization between the OPT expiration and the beginning date of H-1B employment on October 1st. This extension of OPT is referred to as the H-1B cap gap extension.
The general rule is that an application to change status (from F-1 to H-1B) is abandoned if the applicant departs from the U.S. while it is pending. However, the individual may return to the U.S. in F-1 status with a valid F-1 visa and other documentation to show maintenance of status, such as an endorsed Form I-20 and an unexpired OPT Employment Authorization Document (EAD). Because the change of status will be denied, she will be required to apply for an H-1B visa at a U.S. consular post abroad prior to beginning employment in H-1B status. If the H-1B petition and change of status application are approved prior to departure, the individual may return to the U.S. on valid F-1 status prior to the date the change of status takes effect. Again, the individual must have a valid F-1 visa to return in F-1 status.
For background, most individuals traveling to the U.S. must obtain visas from a United States consulate abroad before traveling to the United States. Upon entry, an electronic I-94 Admission/Departure Record is created confirming the visa status and authorized period of stay. The visa is a physical document pasted onto a passport which allows a foreign national to present herself for entry to the United States. The particular visa being presented will determine the individual’s visa status in the U.S. The I-94 record will state the terms of the status.
However, there is an important distinction between an individual whose EAD remains valid and an individual whose EAD has expired but is authorized to continue working based upon the cap gap extension. In this case, it doesn’t make any difference whether or not the F-1 visa remains valid. On April 23, 2010, the U.S. Immigration and Customs Enforcement (USICE) issued Policy Guidance which clarified that an individual whose right to remain in the United States is based upon the cap gap extension will not be able to return to the U.S. in F-1 status before the H-1B petition becomes effective on October 1. Instead, it is suggested that such individual who must travel prior to October 1st, apply for an H-1B visa at a U.S. consular post abroad. Note that the H-1B petition must be approved for an individual to be able to apply for an H-1B visa at a consular post. The individual will be able to return to the U.S. with an H-1B visa on or after September 20th to resume employment pursuant to the H-1B status on October 1st.
Best practice is for an individual with an expired EAD to not travel abroad during the cap gap extension period. If travel is necessary, the individual should be prepared to apply for an H-1B visa and return no earlier than September 20th to begin employment on October 1st.