TRAVEL DURING OPT, CAP GAP & BEFORE A CHANGE OF STATUS TO H-1B HAS BEEN GRANTED

DO NOT TRAVEL IF YOU CAN AVOID IT

It should be noted that OPT and CAP GAP are products of regulations issued by the executive rather than statutes from Congress, and therefore can be changed by the administration without a new act being passed by Congress. Additionally, current practices related to travel while on OPT and CAP GAP are based on memos and guidance provided by USCIS/ICE websites which can be changed instantaneously. Therefore, as a general rule, it may be advisable that travel is avoided or minimized due to the current rapidly changing nature of U.S. immigration policy, often without notice. Note that in all cases, if a student’s F-1 visa has expired and the student wishes to travel, a new F-1 visa must be obtained before re-entering. Please also note that even if an F-1 student meets all of the requirements listed below, a U.S. Customs and Border Protection (CBP) officer always makes the final determination on whether to admit an application for admission after inspection at a port-of-entry.

TRAVEL DURING OPT

A student can travel on a brief trip abroad during a period of post-completion OPT but a valid F-1 multiple entry visa, the unexpired EAD, the endorsed Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, and an accurate electronic SEVIS record will be required for re-entry to complete the training. A letter of employment may also be required. See 9 FAM 402.5-5 (N)(5) (U) ). If a student leaves for more than a temporary absence student status could be lost. If limits on unemployment are exceeded while outside the United States, the student will not be eligible to re-enter the United States in F-1 status.

TRAVEL WHILE AN APPLICATION FOR OPT IS PENDING

Traveling while a request for OPT is pending should be undertaken with caution. USCIS may send a request for evidence while the student is traveling, so the student should provide a correct U.S. address both to the DSO and on the application and should be able to send in requested documents. Also, if USCIS approves the OPT application, the student will be expected to have the EAD in hand to re-enter the United States. USCIS can only send the EAD to a U.S. address. A valid F-1 visa, the Form I-20, EAD (if issued), and an accurate electronic SEVIS record are required to reenter the United States for practical training purposes.  A letter of employment may also be required.  For individuals attempting to travel abroad and be readmitted while an application for the STEM OPT extension is pending, the Form I-20 should be endorsed for reentry by the DSO within the last six months.

CAP GAP

If an F-1 student has a timely filed CAP subject H-1B Petition filed on their behalf while they remain in F-1 status, their F-1 status is extended until September 30th or until there is a decision on their H-1B petition or the Petition is rejected, whichever happens first. If the student has a valid OPT based EAD at the time of filing the H-1B petition their EAD is also extended until September 30th. This is known as CAP-GAP. The CAP-GAP OPT Extension is automatic, and USCIS will not provide the student with a renewed EAD.  However, F-1 students in this situation can request an updated Form I-20 from the DSO, annotated for the CAP-GAP OPT Extension, as well as proof that the I-129 petition was filed in a timely manner.

TRAVEL BEFORE THE H-1B CHANGE OF STATUS HAS BEEN GRANTED

If an F-1 student travels before their H-1B petition is adjudicated their application for change of status will be considered abandoned, and while the H-1B classification can be approved the change of status to H-1B will be denied. If the student’s OPT EAD remains valid on their date of return they may return with an F-1 visa in accordance with conditions stated above under the heading travel during OPT.  Upon return, because the change of status to H-1B will be denied for abandonment, a new Petition to amend (the H-1b Petition approved without a change of status) requesting a change of status would be required or the student would be required to travel abroad to obtain an H-1B Visa through consular process. Additionally, if their F-1/OPT status expires after reentry there is no guidance clearly indicating that they remain eligible for CAP-GAP despite the request for change of status to H-1B being abandoned due to travel before approval. If the student is in CAP-GAP (OPT EAD card has expired) when they travel, they may not be able to return until they obtain an H-1B visa through a consular interview abroad.

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