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.

Stewart Rabinowitz practices United States immigration and nationality law. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Rabinowitz & Rabinowitz, P.C. is an immigration law firm representing businesses, families, and individuals.