- Hui Zeng, Esq.
"You are not permitted to travel outside of the U.S. after selected in the H-1B lotter." Says who?
Abstract: Many are skeptical about traveling outside of the U.S. after they have been selected in the H-1B lottery. There are also many applicants worrying that departure and re-entry into the U.S. will affect their H-1B applications or concerning about their eligibility in reentering into the U.S. upon their departures. However, there is also a wide-spread notion of applying travel restrictions before H-1B comes into effect. After one has been selected in the H-1B lottery, is it true that the applicant is not permitted to travel outside of the U.S.? Well, the answer is indefinite!
Please look below for attorney Hui Zeng’s customized responses for the myriad of applicants seeking different status petitions on “whether if the applicant can travel outside the U.S.”
1、I graduated in May of this year, submitted my H-1B petition in April, and have been selected. What should I do if I plan on traveling outside the U.S. after graduation?
Real Case 1: H-1B applicant Jane will graduate on May 20, 2020, and she is not planning on applying for the OPT. Meanwhile, Jane’s employer will submit an H-1B petition for her employment on April 2, 2020, in which he will choose “Change of Status” and say Jane is selected. In this case, will Jane be permitted to travel outside the U.S.?
Jane’s different status at different times is indicated on the above image: Jane’s F-1 status will expire on May 20, 2020, in which she is not planning on applying for the OPT. Since that Jane’s employer will submit an H-1B petition (Change of Status) on April 2, 2020, and the Cap-Gap rule is applied immediately after the expiration on May 20, 2020, therefore it will extend the F-1 status to September 30, 2020. (Note: Jane is not permitted to work during the period of Cap-Gap)
For more information on Cap-Gap, please see “Don’t turn into an illegal worker because you’ve overlooked the step for Cap-Gap after the selection”. Given that COS will be selected in Jane’s H-1B petition, therefore the status will automatically change from F-1 to H-1B on October 1, 2020 (that is, if the Approval Notice is issued after October 1, 2020, then the calculation time for H-1B will go by the date on the approval notice.)
Jane will graduate on May 20, 2020, and she is planning on traveling abroad after the graduation:
a. Jane will need to apply for Cap-Gap and immediately leaves the U.S. upn the receipt of her H-1B Approval Notice, but she can still enter the U.S. with the F-1 Cap-Gap status before October 1, 2020. To ensure a smooth process, Jane will need to provide an effective F-1 Visa, passport, and I-20 to prove her Cap-Gap identity and permission to travel. (For more information on I-20- proving your Cap Gap identity, please see “Don’t turn into an illegal worker because you’ve overlooked the step for Cap-Gap after the selection”.)
Note: Starting on October 1, 2020, Jane will lose her F-1 status. If Jane chooses to enter the U.S. after October 1, she will have to obtain her H-1B visa abroad to enter the U.S.
b. If Jane leaves the U.S. before receiving the H-1B Approval Notice, this will not affect her application for H-1B, however, her petition for COS will automatically be revoked. At the same time, Jane will lose the privilege of Cap-Gap from COS. In the case that Jane leaves the U.S., she will not be able to enter the U.S. with the F-1 status, she will have to wait for her results abroad and proceed through the visa interview at a local consular. After Jane has been approved of the H-1B Visa, she can then enter the U.S. with the H-1B status. H-1B is effective from the date Jane enters the U.S. using her H-1B Visa.
1) What if Jane selects Consular Processing in her H-1B petition?
Real Case 2: H-1B applicant Jane will graduate on May 20, 2020, and she is not planning on applying for the OPT. Meanwhile, Jane’s employer will submit an H-1B petition for her employment on April 2, 2020, in which he will choose “Consular Processing” and say Jane is selected. In this case, will Jane be permitted to travel outside the U.S.?
The rule of Cap-Gap does not apply to applicants that selected Consular Processing in their petitions. Under this situation, traveling abroad will not affect Jane’s H-1B petition, because Jane will not apply for OPT, therefore her F-1status will expire on May 20, 2020:
a. If Jane travels abroad after her graduation on May 20, 2020, then she will not be able to enter the U.S. using her F-1 status. Jane can only wait for her H-1B Approval Notice abroad and obtain an H-1B visa through visa interview at a local consular upon the receipt of the Approval Notice and reenter the U.S. with the H-1B status. H-1B is effective from the date Jane enters the U.S. using her H-1B Visa.
b. Jane can leave and enter ( with an F-1 status) the U.S. before her graduation date on May 20, 2020. Please note, if the entry time is close to the time of graduation (the time F-1 will be ineffective), then there are certain risks with reentry.
2) What if Jane selects Change of Status in her H-1B along with the application for Post-Completion OPT?
Real Case 3: H-1B applicant Jane will graduate on May 20, 2020, and she is planning on applying for an OPT that is set to expire on July 1, 2021. Meanwhile, Jane’s employer will submit an H-1B petition for her employment on April 2, 2020, and choose “Change of Status”, and say that Jane is selected. In this case, will Jane be permitted to travel outside the U.S.?
Jane’s different status at different times is indicated on the above image: Jane’s OPT effective date will ends on July 1, 2021, therefore without Cap-Gap, her status will still be effective before the H-1B status comes into effect ( October 1, 2020).
Jane is permitted to travel outside the U.S. before the H-1B approval. She can enter the U.S. with an effective F-1 Visa, passport, OPT EAD card, proof of work (Petitioner’s letter or pay stubs), and I-20 for permission to travel.
If Jane leaves the U.S. before her H-1B approval, she can still enter the U.S. using her F-1 (OPT) status along with an effective F-1 Visa, passport, OPT EAD card, proof of work ( Petitioner’s letter or pay stubs), and I-20 for permission to travel. However, in this case, her COS will be revoked but her H-1B petition will not be affected. Under this situation, Jane’s status will not be automatically changed from F-1 to H-1B on October 1 ( or the effective date stated on the Notice after October 1). After Jane enters the U.S. with an F-1 (OPT):
a. Jane can work under the F-1 (OPT) status until July 1, 2021, and leave the U.S. after sixty days (grace period) to reactivate her H-1B for reentry. (H-1B is effective from the date Jane enters the U.S. using her H-1B Visa.)
b. Jane can also leave the U.S. after she receives the Approval Notice, and activate her H-1B at a local consular abroad, then reenter the U.S. with the H-1B status ( H-1B is effective from the date Jane enters the U.S. using her H-1B Visa.)
2、My OPT will expire after April 1, 2020 and by October 1, 2020. My employer is going to submit an H-1B petition for me at the beginning of April and say I am selected. In this case, will I be permitted to travel abroad before my H-1B comes into effect?
Real Case 4: David, an H-1B applicant whose OPT will expire on July 1, 2020. David’s employer will submit an H-1B petition for him on April 2, 2020, and choose change of Status, and say David is selected. In this case, will David be permitted to travel outside the U.S.?
David’s different status at different times is indicated on the above image: Based on the will be submitted H-1B petition on April 2, 2020, David’s OPT status will be extended to September 30, 2020 after July 1, 2020, applying the Cap-Gap rule ( Please note that David can still work during the Cap-Gap period). For more information on Cap-Gap, please see “Don’t turn into an illegal worker because you’ve overlooked the step for Cap-Gap after the selection”. Because David will choose COS in his H-1B petition, his status will automatically change from F-1 to H-1B on October 1, 2020 (that is, if the Approval Notice is issued after October 1, 2020, then the calculation time for H-1B will go by the date on the approval notice.)
David can leave the U.S. after his H-1B approval and can enter the U.S. with an F-1 (OPT) status by October 1, 2020. The documents David will need to bring with him include an effective F-1 Visa, passport, proof of Cap-Gap identity, and I-20 form for permission to travel along with proof of his current work ( Petitioner letter or paystubs). (For more information on I-20- proving your Cap Gap identity, please see “Don’t turn into an illegal worker because you’ve overlooked the step for Cap-Gap after the selection”.)
If David leaves the U.S. before receiving the H-1B Approval Notice, this will not affect his application for H-1B, however, his petition for COS will automatically be revoked.
1) What if David selects Consular Processing in his H-1B petition?
If David leaves the U.S. before receiving the H-1B Approval Notice, this will not affect his application for H-1B, however, his petition for COS will automatically be revoked and the Cap-Gap privilege from COS will no longer be applicable. David can enter the U.S. before his OPT expires with the F-1 (OPT) status (Please note: it will be risky for the applicant if the reentry time is relatively close to the date of OPT expiration – July 1, 2020). Because David’s COS is automatically revoked, David can no longer access the Cap-Gap privilege upon his OPT expiration on July 1, 2020, and he has to leave the U.S. within sixty days after the OPT expires, and wait for the Approval Notice abroad. If David enters the U.S. after July 1, 2020 (after the OPT expiration), David can no longer enter the U.S. given that his OPT status will already expire. Therefore, David will have to wait for his H-1B Approval Notice abroad and obtain his H-1B visa through a visa interview at a local consular, and enter the U.S.
2) What if David selects Consular Processing?
If David selects Consular Processing, the Cap-Gap rule will no longer be applicable, and travel outside the U.S. will not affect his H-1B application. David will only need to enter the U.S. with his OPT status within the effective period. (Please note: it will be risky for the applicant if the reentry time is relatively close to the date of OPT expiration – July 1, 2020.) Under this situation, David will need to leave the U.S. in sixty days (Grace Period) after his OPT expires and wait for the Approval Notice abroad. David will also need to obtain his H-1B visa through a visa interview at a local consular, and enter the U.S with the H-1B status.
3、My OPT is expired by April 1 and I plan on submitting an H-1B petition during the grace period. Will I be permitted to travel outside the U.S. before my H-1B comes into effect?
Real Case 5: H-1B applicant Michael’s OPT will expire on March 25, 2019. Michael’s employer will submit an H-1B petition for him on April 2 and choose Change of Status, and say Michael is selected. In this case, will Michael be permitted to travel outside the U.S.?
Michael’s different status at different times is indicated on the above image: Michael will submit an H-1B petition (Change of Status) during the grace period after his OPT expires, in which his F-1 status will be extended to September 30 upon applying the Cap-Gap rule after April 2. ( Michael can not work during the Cap-Gap period). For more information on Cap-Gap, please see “Don’t turn into an illegal worker because you’ve overlooked the step for Cap-Gap after the selection”. Because Michael will select COS in his H-1B petition, therefore his status will automatically change from F-1 to H-1B on October 1 (that is, if the Approval Notice is issued after October 1, 2020, then the effective time will be determined by the time on the Approval Notice).
Michael can leave the U.S. after the receipt of the H-1B Approval Notice and reenter with an F-1 status before October 1. The documents Michael will need to bring with him include an effective F-1 Visa, passport, proof of Cap-Gap identity, and I-20 form for travel approval (For more information on I-20- proving your Cap Gap identity, please see “Don’t turn into an illegal worker because you’ve overlooked the step for Cap-Gap after the selection”.
If Michael leaves the U.S. before the receipt of the H-1B Approval Notice, it will not affect his H-1B petition, but the COS petition will be automatically revoked and the Cap-Gap privilege from COS will no longer be applicable. If Michael leaves the U.S. after March 25 and before the receipt of the H-1B Approval Notice, in this case, Michael will not be able to reenter given that his F-1 status will have already expired. Michael will need to obtain an H-1B visa through a visa interview at a local consular abroad after the H-1B Approval Notice is issued and enter the U.S. with the H-1B status.
1) What if Michael selects Consular Processing in his H-1B petition?
If Michael selects Consular Processing, then the Cap-Gap rule does not apply to his case. Michael will have a sixty days Grace Period after his OPT expires. Traveling outside the U.S. during the Grace Period will prohibit Michael to reenter the U.S. with F-1 status. If Michael leaves the U.S. during the Grace Period, he will have to obtain his H-1B Visa through a visa interview at a local consular after his H-1B Approval Notice is issued and enter the U.S. with the H-1B status.
Special reminder from attorney Zeng: According to the law, the applicant is permitted to travel outside the U.S. within a certain period. However, please carefully note the fact that whether or not the applicant can enter the U.S. depends on the discretion of CBP ( U.S. Customs and Border Protection), therefore, there are certain risks in leaving and traveling outside the U.S. If in doubt, please be sure to consult an attorney.
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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