My H-1B Cap Petition is Pending – Can I Travel Outside the U.S.?
It’s that time of the year where employers are starting to file H-1B cap cases for their selected candidates. I get many questions, especially from F-1 students, about the impact of travel. Below are the most common questions and their answers:
Q: I am an F-1 student currently on OPT/STEM OPT. My employer recently filed my H-1B cap petition and I am now in cap-gap. Can I travel outside the U.S.?
A: F-1 students currently in cap-gap are advised to not travel outside the U.S. while the H-1B petition is pending. If a student travels while a petition requesting a change of status is pending, the change of status request will be considered abandoned, and the student will no longer be eligible for the cap-gap extension. USCIS may still approve the petition itself, but your status would no longer automatically change from F-1 to H-1B on October 1st. You would have to leave the U.S. and apply for an H-1B visa stamp at a U.S. Consulate or Embassy before returning to the U.S. in H-1B status.
Q: But I have an emergency and I have to leave the U.S… what should I do?
A: If you absolutely have to travel, you can do so but again your change of status will be abandoned and you will lose your cap-gap eligibility. You should be prepared to remain outside the U.S. until the petition is approved so that you could obtain an H-1B visa stamp at a U.S. Consulate or Embassy abroad. You will then be able to re-enter the U.S. in H-1B status up to 10 days prior to the October 1st employment start date.
Q: I am an F-1 student. My employer filed my H-1B cap petition early and I already have an approval. Can I travel before October 1st?
A: If your change of status is approved before October 1st, you should be able to travel abroad and come back to the U.S. as long you are coming back to the U.S. to resume your studies or your OPT employment. When traveling you should have a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel.
Q: My H-1B cap case was filed in consular processing, not a change of status. Can I travel?
A: Yes, you will be able to leave the U.S. and come back into the U.S. on your current status as long as you have a valid visa. However, once the H-1B petition is approved it will not have an I-94, and you will have to leave the U.S. again and apply for an H-1B visa stamp at a U.S. Consulate or Embassy before returning to the U.S. in H-1B status. Or, once you leave the U.S. you can stay outside the U.S. while your petition is pending and once approved then go for H-1B stamping before returning to the U.S.
Q: I am not an F-1 Student – I am currently on H-4/L-2 status and my employer filed an H-1B change of status petition. Can I travel in this situation?
A: Even if you’re currently on H-4 status, if you applied for a change of status and you travel outside the U.S. you will abandon your change of status, meaning your change of status from H-4/L-2 to H-1B will not take effect on October 1st. You will be able to travel and come back on H-4/L-2 status, but if your petition is approved it will be approved without an I-94 and you will have to leave the U.S. again and apply for an H-1B visa stamp at a U.S. Consulate or Embassy before returning to the U.S. in H-1B status.