Conundrum of travel during Cap-Gap

airplane

By: Poonam Gupta, Esq.

You can finally relax because you filed all your H-1B petitions on time and have received at least receipt notices for the ones that made it through the lottery. You may also have the petitions back from the USCIS that did not make the lottery. In the midst of all this yearly craziness, do you get bombarded with requests for advice on travel? The popular theme seems to be a vacation outside the United States and especially as soon as the H-1B petition is filed. Sometimes even sooner but the tempo definitely picks up if the petition is picked in the lottery. My guess is, once the stress of making it through the lottery is over, the beneficiaries turn their focus again on regular activities and travel is a natural extension of that. Travel may not be an issue for some but if the beneficiary of an H-1B petition is a student in F-1 status, there is a word of caution – don’t travel if you don’t have to!

Impact of cap-gap provisions for students in F-1 status

The cap-gap provisions codified in 8 CFR §214.2(f)(5)(vi)(A) automatically extend the F-1 status of students with pending or approved H-1B petitions from the end of their authorized stay to the start of their H-1B period on October 1. However, if a student travels outside the United States at any time after the filing of the H-1B petition, he or she loses the cap-gap protection and may not be able to enter the United States in F-1 status. The prerequisites for the cap-gap provisions to apply include:

  1. A timely filed H-1B petition requesting a change of status; and
  2. Valid authorized F-1 duration of status for the student.

The travel ban seems to be built into the cap-gap provisions since it only applies to students in the United States and permits them to continue in their status till the start of their H-1B on October 1. If a student is ineligible for a change of status for any reason or if he or she leaves during cap-gap, there is no way to recapture and come back to the cap-gap situation. Hence, cap-gap only applies if the H-1B petition requests a change of status and not consular processing. The student should stay in the United States for the duration of the cap-gap. The second prerequisite for cap-gap is the valid authorized F-1 duration of status for the student, which includes:

  • the period during the academic course of study;
  • any authorized period of post-completion Optional Practical Training (OPT); and
  • the 60-day departure preparation period, commonly referred to as the “grace period.”

Under the cap-gap provisions, a student’s status is automatically extended if they meet the two prerequisites. To obtain proof of continuing valid status, a student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition indicating a request for change of status rather than for consular processing. Such evidence may include a copy of the petition and a mailing confirmation receipt. The DSO is required to issue a preliminary cap-gap I-20 showing an extension until June 1, upon proof of timely filing. If the student’s H-1B petition is selected for adjudication, the student should present to the DSO a copy of the H-1B receipt with a valid receipt number, indicating that the petition was filed and accepted. The DSO will then issue a new cap-gap I-20 indicating the continued extension of F-1 status until September 30. On October 1, the student’s status is automatically converted to H-1B from F-1.

If the H-1B petition filed for the benefit of the F-1 student is denied, rejected, or revoked during the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) to depart from the United States.

Employment authorization

At the start of the cap-gap period students who are authorized for employment maintain that employment authorization for the cap-gap duration until the start of the H-1B on October 1. If a student does not have employment authorization at the outset of the cap gap, their F-1 status is extended but they do not have employment authorization during that period. Thus, students in the 60-day grace period also benefit from the cap-gap and maintain valid F-1 status without having to travel outside the U.S. before the start of their H-1B but do not have employment authorization during this time.

Students eligible for a cap-gap extension of post-completion OPT employment and F1-status may apply for a STEM OPT extension during the cap-gap extension period. A student may not file for STEM OPT extension, if the cap-gap extension period is terminated because the H-1B petition was rejected, denied, or revoked and the student is in the 60-day grace period.

Travel during cap-gap

Please be advised of USCIS guidance[1] on travel during cap-gap extension, which states:

A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

AILA pointed out the inconsistency of this guidance with the regulations, at its April 10, 2014 meeting with the USCIS[2] but at this time, USCIS stands by the above guidance. The pertinent question and answer from this meeting is:

Travel During the H-1B Cap-Gap Period

10. The Q and A on Post-Completion Optional Practical Training and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations found on the USCIS website states that a student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. However, under the cap-gap regulations at 8 CFR §214.2(f)(5)(vi)(A), “the duration of status and any employment authorization … of an F-1 student who is the beneficiary of an H-1B petition and request for change of status shall be automatically extended until October 1 of the fiscal year for which such H-1B visa is being requested” and under 8 CFR §214.2 (f)(13)(ii), an F-1 student who has an unexpired post-completion OPT EAD who is otherwise admissible may return to the U.S. to resume employment after a temporary absence. If the student has a valid F-1 visa stamp, a properly endorsed I-20, and an EAD card that has been automatically extended in accordance with 8 CFR §214.2(f)(5)(vi)(A) , shouldn’t the student be able to travel and return to the U.S. to resume employment during the cap-gap period in accordance with 8 CFR 214.2(f)(13)(ii)?

Response: The ability to re-enter the United States involves other DHS entities, including Customs and Border Protection, as well as the Department of State. USCIS will reach out to these other government agencies to further explore your request. In the interim, USCIS must follow the current policy as stated in the H-1B Cap-Gap website.

Some specific travel scenarios

  1. International travel with a pending H-1B petition with a request for change of status

If a student travels abroad while the H-1B petition and request to change status are pending, the change of status portion of the petition is considered abandoned. USCIS could still approve the H-1B petition, but the student’s status does not automatically change to H-1B status on October 1. Instead, the student would have to leave the United States again and apply for an H-1B visa at a U.S. consulate.

  1. International travel for a student still in school and after H-1B petition approved

After the change of status is approved but before it takes effect on October 1, a student should be able to travel abroad and reenter, as long as the student’s course of study is not finished and the student is coming back to resume the studies. The student will need a valid passport with a valid F-1 visa stamp and a Form I-20 endorsed for travel. If the student does not have a valid F-1 visa in the passport then it may be advisable not to travel unless traveling to get an H-1B visa stamp as it may be difficult to demonstrate the requisite nonimmigrant intent for an F-1 visa.

  1. Reenter the U.S. on a new F-1 visa before October 1 with approved H-1B petition

A student should expect potential issues when applying for a new F-1 visa abroad and also at the port of entry because a student with an approved H-1B petition has questionable nonimmigrant intent, i.e., intent to return to the student’s home country. Having a non-U.S. residence that the student does not intend to abandon is a requirement for F-1 status. An approved H-1B petition alerts the consular and border officials of the student’s professional job in the United States – a possible indication of strong ties to the United States. If the consular or border officer questions the nonimmigrant intent, the visa or entry could be denied or delayed. The student may have to wait overseas until he or she can apply for an H-1B visa to enter and start the H-1B employment. The H-1B visa does not require nonimmigrant intent. If possible, the student should avoid travel till he or she can apply for the H-1B visa.

  1. International travel, if no OPT and H-1B approved

As per USCIS guidance quoted above, the student cannot return to the United States in F-1 status if he or she travels abroad at the end of the academic program. If the H-1B petition was filed before the F-1 status expired, the student can remain in the United States during the cap-gap period between the end of the F-1 period of stay (including 60-day grace period) and October 1. But an F-1 student who travels abroad during the grace period or the cap-gap cannot be readmitted to the United States in F-1 status. If the student must leave the United States, he or she will have to apply for an H-1B visa to return, and will not be able to work until October 1.

Applying for H-1B visa abroad

Department of State permits an individual to generally apply for an H-1B visa up to 90 days before the H-1B petition start date. If the start date is October 1, then an individual would be able to apply for his or her H-1B visa no earlier than July 3. However, some consulates may permit applications up to 120 days ahead of the H-1B start date of October 1. Please check with the consulate for specific instructions on when they will accept the H-1B visa application. Contact information for U.S. embassies and consulates is available at http://usembassy.gov.

Start of the H-1B

Once the individual has received an H-1B visa, he or she may enter the United States up to ten days before the H-1B petition start date. For instance, if the start date is October 1, an individual may enter as early as September 21. The extra ten days permits the individual to get settled in the United States, but does not permit the individual to perform any H-1B work during this time. An individual may not start the H-1B employment until the actual petition start date.

Individuals in other status

The cap-gap provisions only apply to F-1 students and not to exchange visitors in J-1 status or their dependents in J-2 status or individuals in any other nonimmigrant status. Individuals in the United States in a status other than F-1 are only allowed to stay for their authorized stay even if an H-1B petition has been filed for them and is subsequently approved. For individuals in J status that is the duration of the exchange program plus a grace period of 30 days.

If the J period of stay and grace period end before September 30, 2014, the exchange visitor must depart the United States and apply for an H-1B visa abroad. Such an individual is not eligible for a change of status to H-1B because there of the gap between the end of the period of authorized stay and the day the H-1B petition takes effect. However, if the J period of stay (including grace period) remains valid through the start date of the approved H-1B petition and the H-1B petition requests a change of status to H-1B, the exchange visitor may remain in the United States in J-1 status before the change of status takes effect.

Similarly for an individual in TN status, if the TN status will be valid on September 30 and he or she has an approved H-1B petition requesting a change of status effective October 1 then his or her status will automatically convert to H-1B on October 1.

Conclusion

The USCIS guidance is contrary to the regulations and wrong but it is the prevailing guidance. In light of the USCIS guidance, the potential pitfalls in obtaining a new visa and difficulties in re-entering on F-1 status, unless absolutely necessary, it is advisable for students to stay within the United States for the duration of the cap-gap and leave either after the H-1B has taken effect or just before so that they can travel to get an H-1B visa and then reenter on that visa.

 

[1] http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-post-completion-optional-practical-training-opt-and-f-1-status-eligible-students-under-h-1b-cap-gap-regulations [Last visited on June 15, 2014].

[2] Question 10. USCIS Meeting with the American Immigration Lawyers Association (AILA) April 10, 2014. AILA InfoNet Doc. No. 14050243. (Posted 5/2/14).

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