Traveling While in the H-1B Cap-Gap Period

As the H-1B  season is fully underway and U.S. Citizenship and Immigration Services (USCIS) is currently adjudicating petitions that were accepted in the lottery, many F-1 students are in the period known as “H-1B cap-gap.”  The cap-gap provisions allow an F-1 student who filed an H-1B petition and that was accepted in the lottery process to automatically extend their student status and employment authorization until October 1, 2013.

However, during this cap-gap period travel is not advised.  While the USCIS guidelines are not completely clear, it is regular practice that an F-1 student will lose the cap-gap benefits if they travel outside the U.S. during this period.  This means that if an F-1 student travels outside the U.S. (including Canada and Mexico), the student would not be able to return to the U.S. in valid F-1 status and must wait until they can be admitted in their new H-1B status.  If an individual in F-1 status leaves the U.S. during this cap-gap period and their H-1B petition is approved, that person will be allowed to enter only 10 days prior to the October 1st start date in valid H-1B status.  However, they will not be allowed to begin working until October 1st.

Therefore, if you are an F-1 student (with an approved H-1B petition) who wishes to travel over the summer, you should plan to travel in September so that you can apply for the H-1B visa at a U.S. consular post abroad and return to the United States on or after September 20th.

If you have questions about the cap-gap provisions or scheduling a visa appointment at your home Consulate, please contact our attorneys today.

 

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