Traveling outside the United States for F-1 Students during Cap-Gap Extension


As you may know, F-1 students who filed H-1B petitions and were accepted as part of the lottery are eligible for cap-gap extension coverage.  This allows F-1 students who have a pending or approved H-1B petition to have their F-1 status and employment authorization automatically extended until October 1st.  However, many F-1 students may wish to travel during the cap-gap period.  An April 23, 2010 ICE policy 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.  This means that if an F-1 student with a pending H-1b petition 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.  On the other hand, the ICE guidance does not address whether travel is permitted during the cap-gap period if the H-1B has already been approved.  While this question remains unresolved, the best practice for F-1 students is to remain in the United States during the cap-gap period.  That being said, an F-1 student with an approved H-1B petition always has the possibility to apply for an H-1B visa at a U.S. consular post abroad and subsequently return in the United States and be admitted under H-1B status.  It should be noted that an H-1B beneficiary may enter the United States up to 10 days prior to the start date (i.e. September 20) and that the alien cannot start H-1B employment until October 1.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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