by Adena Bowmen, Attorney at Law
Like many hopeful applicants this year, your employer filed an H-1B petition on your behalf. You are currently in the United States, but in another status. You're aware that the number of applications filed will likely exceed the number of actual visas available, which will result in a lottery. You're currently in the U.S., and if your application is selected and approved, you plan to change your status here.
Question 1: Can I travel outside the U.S. while the application is pending?
Answer 1: USCIS views travelling outside the United States while your H-1B application is pending as abandoning your application. Even if you H-1B application is selected in the lottery and gets approved, if you return to the U.S. before October 1, your change of status will be denied. If you plan to remain outside of the U.S. until October1, you can apply for consular processing at a U.S. consulate and enter the U.S. in H-1B status.
Question 2: I am a student here in the U.S. on an F1/OPT/OPT STEM Extension. My H-1B application is selected in the lottery, and gets approved. Can I travel now?
Answer 2: You can travel if have no plans to return until on or after October 1. You will then need to apply for consular processing at a U.S. consulate and enter the U.S. in H-1B status.
Question 3: I am a student currently in the U.S. with an F1/OPT/ OPT Extension. My OPT expires after April 1 but before October 1, and I fall under the cap-gap provision which allows me to stay and work in the U.S. until my H-1B status begins on October 1. MY H-1B application has been approved. Can I travel after the expiration of my OPT but before October 1?
Answer 3: USCIS has never stated a position on this, but most attorneys suggest that you not travel. If you do decide to leave the United States, you will likely be in the same position as other F1 students who travel during this period, and be stuck outside the U.S. until October 1, when you apply for consular processing at a U.S. consulate and enter the U.S. in H-1B status.
Question 4: What if my H-1B application is denied, but I still have time left on my F1/OPT/OPT STEM Extension. Can I travel now?
Answer 4: Maintaining your F1 status requires you to have "nonimmigrant intent" i.e. you plan to go back to your home country after the visa period ends. By filing an H-1B application, you have declared your intent to remain in the U.S. after the end of your F-1 status, so it is possible you will be denied re-entry. If you want to stay in the United States after the denial of your H-1B application on your F1/OPT /OPT Extension, travel is not advised.
Question 5: My H-1B application has been approved for an October 1 start date. I am currently on H-4. Can I travel?
Answer 5: Your last action controls your current visa status. If you travel outside the U.S. beforeOctober 1 on your H-4 visa, your last action invalidates your request to change your visa status in the U.S. to H-1B. You will still have your H-1B approval, and will not be required to enter the lottery again. To change your status to H-1B, you will need to either re-apply for a change of status in the U.S. or apply for consular processing at a U.S. consulate and enter the U.S. in your H-1B status. Unlike F1 visas, H4 allows for "dual intent" so your status is unaffected by filing the H-1B application.
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.