Travel Guidance for F-1 Students

March 5, 2015

Before undertaking international travel outside of the United States, individuals holding F-1 student status should be mindful of any potential risks.  This is particularly important where an individual in F-1 student status is seeking to change his/her status to that of an H-1B specialty worker.  While the general guidance below may be helpful to F-1 students, individuals should contact us directly with any questions specific to the facts of their case before making travel plans. 

 

F-1 Students Still Enrolled in an Academic Program: If an individual is still enrolled in an academic program as an F-1 student and has not applied for Optional Practical Training (OPT), the individual should be able to reenter the United States by presenting a valid passport, F-1 visa stamp, and Form I-20 issued by the F-1 student’s university or college.  It is strongly recommended that an F-1 student request a new Form I-20 within the 30-day period prior to departing the United States as this may alert the university or F-1 student of potential errors in the individual's Student and Exchange Visitor Information Systems (SEVIS) account.  If a petition has been filed to change the F-1 student’s status to that of an H-1B specialty worker, then it is recommended that the F-1 student wait until the H-1B petition has been approved before attempting to travel outside the United States (see below). 

 

F-1 Students With A Pending H-1B Petition Requesting a Change of Status: It is generally recommended that F-1 students not travel outside of the United States while a petition requesting a change of status to the H-1B classification is pending.  A petition requesting a change of status assumes that an individual is in the United States at the time the petition is filed through the date that the petition has been adjudicated.  If an individual departs the United States before the petition has been adjudicated, then the individual technically no longer has status in the United States and, hence, there is no status to change from.  Should an F-1 student depart the United States while a change of status petition is pending, the government may take the position that the individual no longer holds F-1 status and deny the request for a change of status.  Under this scenario, an employer’s H-1B petition may still be approved but the portion requesting that the F-1 student’s status automatically be changed to that of an H-1B specialty worker may be denied.  As a result, the foreign national would be required to undertake additional actions in order to activate his/her H-1B status.

 

F-1 Students Who Have Completed Their Academic Program But Will Not Apply for OPT: After an individual’s academic studies have completed, he/she will not be permitted to reenter the United States as an F-1 student.  This is true even where an individual departed the United States during the 60-day F-1 grace period and seeks to reenter within 60 days of the academic program end date.  An F-1 student who has an H-1B change of status petition filed on his/her behalf prior to the academic program end date or 60-day F-1 grace period end date may be permitted to remain in the United States in F-1 status through October 1st.  Assuming the H-1B petition is approved, on October 1st, the F-1 student’s status would be changed to that of an H-1B specialty worker and the individual would be authorized to commence employment in the United States.

 

F-1 Students Who Have Applied For OPT Or Working Pursuant to OPT:  An F-1 Student may travel during the OPT validity period listed on his/her endorsed Form I-20, provided that the individual has maintained valid F-1 status.  When seeking to reenter the United States as an F-1 student, the individual should be able to reenter the United States by presenting a valid passport, F-1 visa stamp, and endorsed Form I-20.  If the individual has been working pursuant to OPT, it is recommend that the individual also present his/her valid Employment Authorization Document (EAD card), a letter from the individual’s employer confirming his/her employment pursuant to OPT, and copies of pay statements issued by the OPT employer. 

 

Individuals traveling during their OPT period should be careful not to depart the United States before securing an offer of employment.  Moreover, they should also track the number of days spent unemployed during the OPT period.  F-1 students may accrue up to 90 days of employment during their OPT period (or 120 days for individuals who receive a STEM extension of their OPT).  To be considered employed for purposes of OPT, an F-1 student should work at least 20 hours per week in a qualifying position.  Furthermore, time spent outside of the United States during the OPT period is counted as time unemployed unless the F-1 student is traveling as part of his/her employment or the F-1 student is employed and the travel occurs during a period of leave authorized by the employer.       

 

F-1 Students Whose OPT/EAD Card Will Expire Prior to October 1st: “Cap Gap” refers to the period of time between when an F-1 student’s status would ordinarily end and when the individual’s H-1B status begins.  Under the immigration regulations, where an H-1B petition has been filed before the F-1 student’s OPT period ends, the F-1 student’s period of authorized stay and work authorization is automatically extended to October 1st.  If an employer’s H-1B petition is rejected, denied or revoked, the F-1 student’s authorized period of stay and work authorization terminates immediately.  Individuals who are permitted to remain or work in the United States pursuant to cap gap should refrain from traveling outside of the United States during the cap gap period, as they may not be permitted to reenter the United States in F-1 status and may be required to wait until October 1st before they are able to resume work in the United States.

 

F-1 Students Who Travel Outside of the United States Without a Valid F-1 Visa Stamp:  In limited circumstances, the Automatic Revalidation Rule may allow certain F-1 students to travel to Canada or Mexico for a period of less than 30 days and reenter the United States on an expired F-1 visa stamp (provided a number of other conditions are satisfied).  Most F-1 students, however, require a valid F-1 visa stamp in order to enter the United States.

 

Where an individual has an H-1B petition approved on his/her behalf, it is possible that the United States Consular Post may question whether the foreign national possesses “nonimmigrant intent” and has demonstrated sufficient ties to the individual’s home country.  This can become particularly challenging and may delay visa issuance where an individual has strong ties to the United States.  Individuals seeking to apply for an F-1 visa stamp should also be aware of the possibility that their application could be selected for administrative processing, which may delay the issuance of a visa stamp by several weeks or even months.  Reasons for administrative processing often include national security concerns, travel history, education background, prior employment history, prior access to sensitive technologies, or a name that resembles that of someone on a travel watch list.  Given these concerns and the potential impact of delayed visa issuance, F-1 students should carefully weigh the need for international travel where the individual does not have a valid F-1 visa stamp.  

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