F-1 to H-1B Lottery Winners: Travel Before October 1 is Risky

For many F-1 academic students who have graduated, received post completion Optional Practical Training (“OPT”), had an H-1B petition filed in their behalf with a start date of October 1, and “won” the H-1B lottery, such persons are entitled to continued, authorized F-1 stay and continued employment authorization up until September 30 of the year.  This is known as a “cap gap” benefit.  The question arises whether a cap gap H-1B beneficiary can travel outside the U.S. without adverse impact if the H-1B petition is pending or already approved.

While there is no guidance directly on point, in a policy Memorandum issued on April, 2010, Immigration and Customs Enforcement (“ICE”) advises against travel for an F-1 student whose H-1B change of status petition has not yet been decided.  It bases its reasoning on USCIS policy that considers the change of status portion of an H-1B petition as abandoned if the H-1B beneficiary departs the U.S. before USCIS decides the case.  The Memorandum is silent regarding cap-gap travel if the H-1B petition is already approved.   To be safe, H-1B cap gap beneficiaries should remain in the U.S.  during the cap-gap interval and those considering travel abroad should consider making an H-1B visa application in September.  H-1B visa status holders can enter 10 days in advance of their start date but can only begin work on October 1.

Rabinowitz & Rabinowitz, PC. is an immigration law firm in Dallas Texas representing individuals and family members in lawful permanent resident and U.S. Citizenship cases. To learn more visit http://www.rabinowitzrabinowitz.com.

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