Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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Traveling Out of the US While Waiting for the Initial, Cap-subject H-1B

Q: I am in the U.S. in F-1 Student Status working with Optional Practical training ("OPT") after my graduation, and my employer has filed for a cap-subject H-1B for me. Assuming I get selected in the cap lottery and the H-1B petition remains pending or ultimately gets approved, what are the consequences of leaving the U.S. before I start work using the H-1B next October 1?

A: The consequences can be fairly significant, and should be discussed in detail with the immigration attorney handling the H-1B before plans are made to depart.

I. Problems With Reentry

First, travel abroad while on Optional Practical Training has historically been difficult. There was a time (although this is no longer the case) where it was impossible to reenter the U.S. once in the OPT period, as employment in this status was considered to be outside of the scope of the F-1 visa used for entry.

Reentry is now permitted (often a new visa stamp must first be obtained from a consular post), but only if the foreign national can establish that they already have a job (or at least a job offer) to which they are returning - otherwise, the OPT is lost and there is no way immediately available to return to the U.S.

What still must be established upon reentry to the U.S. with OPT in addition to a job or job offer is what must be established with any F-1 entry: a valid F-1 (education-related) purpose for entering the U.S. and "non-immigrant intent" (the intent to return abroad at the end of the authorized period of stay, rather than remain in the U.S. permanently) among other things.

While the foreign national may still be using the period of Optional Practical Training to learn about his or her chosen field in the job to which they are returning, and while the H-1B is also a non-immigrant visa (albeit one which permits simultaneous immigrant intent), these things may be more difficult to prove once an H-1B petition has been filed and the intent to seek longer-term employment in the U.S. demonstrated.

II. While H-1B Petition Still Pending

If the H-1B petition is still pending with USCIS and included a request to Change Status from F-1 to H-1B (an automatic change that would occur without the foreign national needing to leave the U.S., get the visa stamp abroad, and return), this request would be deemed abandoned if the person leaves the U.S.

The foreign national would then need to wait abroad until shortly before the H-1B petition start date, apply for and obtain the H-1B visa stamp at the U.S. consular post abroad, and return in that status to begin work. Alternatively, the individual may be able to establish entitlement to reenter on the F-1 to resume work on Optional Practical Training (as discussed above), but would then need to return abroad later to obtain the H-1B stamp and reenter the U.S. to assume H-1B status.

III. After H-1B Petition Approved with Change of Status

Even if the H-1B petition has already been approved, the request to Change Status is still deemed abandoned by international travel before the H-1B start date on October 1. A reentry on F-1/OPT will require the individual to leave again prior to October 1, obtain a visa stamp, and return in order for the H-1B to be valid for employment on October 1.

However, if entering using the F-1/OPT and seeking to resume work on the OPT before October 1, there remains the issue discussed above - the continuing need to show (among other things) a valid F-1-consistent reason for returning and non-immigrant intent.

It remains unclear how these issues will be viewed by Border and Customs Protection (BCE) officers once an H-1B has been filed, thus evidencing an intent to remain in the U.S. for longer-term employment without an educational component (often is the same position in which the foreign national currently seeks to resume after reentering on F-1 using the Optional Practical Training).

The risk - being sent out of the U.S. with no means of returning until October - is often too great for individuals with jobs, residences and social lives in the U.S., and employers depending upon the foreign national to continue in the position offered to them.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.