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Travel During H-1B Cap Season- Do’s and Don’ts

H-1B cap season is once again around the corner. On March 29, 2019, hundreds of thousands of H-1B cap petitions will be shipped to USCIS Service Centers in Vermont and California for selection in this year’s cap season. Assuming premium processing does not come back, the wait time for that receipt notice seems to stretch on forever as an indication that the lucky petition was picked. The question that always comes up refers to international travel during H-1B cap season, since April and May seem to go into a black hole of no news. Can a beneficiary for an H-1B cap petition travel outside the US during the H-1B cap? The answer is extremely lawyerly: It Depends. Below, we lay out the scenarios for different classifications as to who may or may not travel internationally, and if travel is a must, what the implications mean.

F-1 Students

Relying on Cap Gap: If you are an F-1 student, and relying on cap gap, you should not travel before you receive news of whether your petition has been selected and approved. If you do travel and you are relying on cap gap for work authorization, you may not be able to return to the United States, as your F-1 status is no longer valid. If your H-1B petition has been selected and approved (as a change of status), then you may travel and return before Oct. 1, if you meet certain conditions; however, we strongly recommend against travel during this period if you are relying on cap-gap.

Not Relying on Cap Gap: If you are an F-1 student and your EAD is still valid, you may travel, with all the required documentation for F-1 students. However, note that if you do travel, and your petition was filed as a Change of Status, the petition will automatically be approved as a Consular Notification because you will be deemed to have abandoned your Change of Status application by traveling outside the United States while it was pending.

Other Non-Immigrant Status

If you are on a different non-immigrant status – for example, H-4, TN, O-1, and you know you have international travel plans between the months of April and October, it may be smart to have your petition filed as consular notify if your current non-immigrant status will still be valid and you have the proper visa and other documents. If you travel during the period between April 1 and Sept. 20 (because you may enter up to 10 days before the start date in H-1B status), and your petition was filed as a Change of Status, the Change of Status will be denied and you will need to exit the U.S. and reenter to “activate” the H-1B after Sept. 20, after the H-1B petition has been approved.

 

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About this Author

Kristen Ng, Greenberg Traurig Law Firm, Nortrhern Virginia, Immigration Law Attorney
Associate

Kristen W. Ng focuses her practice on business immigration and compliance matters. She advises individuals and companies on a wide range of immigration matters, including nonimmigrant and immigrant employment-based cases, citizenship issues (acquisition, retention and relinquishment) and investor cases (E-2 and EB-5). She communicates directly with clients, including HR managers, high-level executives, and employees to ensure comprehension of each respective immigration process and procedure and to collaboratively produce the best immigration strategy and approach for...

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