Caution Student-Employees Against Travel Abroad During ‘Cap-Gap’ Period

 

Allen Smith, J.D. By Allen Smith, J.D. April 18, 2019
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​Foreign nationals in the United States who are transitioning from student visas to employer-sponsored visas may have a hard time returning to the U. S. if they travel abroad between the date their student visa expires and Oct. 1, when professional visas take effect.

The F-1 visa lets foreign students study full time at U.S. colleges or universities. The H-1B visa lets U.S. employers sponsor foreign workers in jobs requiring specialized knowledge, such as in the sciences, medicine, health care, education, biotechnology and business specialties. To be eligible for an H-1B visa, workers must have a bachelor's degree or the equivalent in a specific specialty.

[SHRM members-only how-to guide: How to Sponsor an Individual for an H-1B Visa]

Typically, students on F-1 visas graduate in May or June and can then work for a year in the U.S. in a field related to their major area of study. After this employment authorization—known as optional practical training (OPT)—those who've studied science, technology, engineering or math can try to extend their OPT for another 24 months.

If companies want to employ the graduates beyond the additional two years, they must typically file an H-1B petition on April 1 for an H-1B start date of Oct. 1. Petitions are selected by lottery and approved by U.S. Citizenship and Immigration Services (USCIS). The demand for H-1B workers in recent years has far exceeded the supply of visas.

Several years ago, USCIS published a regulation that automatically extends OPT so there is no gap in employment authorization between the OPT expiration date and Oct. 1, also known as the "cap-gap" period. But graduates—referred to as students under immigration law—who want to travel internationally during the cap-gap period face numerous decisions, noted Andrew Greenfield, an attorney with Fragomen in Washington, D.C.

Different Scenarios

When someone leaves the U.S. while a change-of-status petition is pending, the petition may be deemed abandoned, said James Pack, an attorney with Fragomen in Irvine, Calif.

If a college graduate who's finished his or her OPT year travels abroad and then returns to the U.S. while the H-1B petition is still pending with USCIS, he or she likely must make a second trip abroad, apply for an H-1B visa stamp at a consulate, and re-enter the U.S. on or after Oct. 1 for H-1B work authorization to take effect. 

A second international trip could be burdensome, and besides that, wait time for consular appointments may be lengthy, which could impact a graduate's ability to start a U.S. job in a timely manner, Greenfield noted.

If graduates try to return to the U.S. before Oct. 1, they must do so on a student visa, which means the visa requires a valid stamp. If they do not have a student visa, graduates must apply for one at a U.S. consulate or at a port of entry before returning.

But if this is done during the cap-gap period, a consular or border officer may question the graduate's intent to ultimately return to his or her home country. Graduates must prove that they have a residence abroad that they plan to return to after a temporary U.S. stay.

The graduate could be asked to wait abroad until Oct. 1 before entering the U.S. with an H-1B visa.

No Exceptions for Emergencies

Graduates in the cap-gap period "should not travel abroad during the change-of-status request pendency unless there is an emergency, and they should be fully prepared to wait outside of the U.S. until they can return on the H-1B visa," said Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, Fla.

"Even if there's a death in the family, that does not change the rules," noted Courtney Noce, an attorney with Greenberg Traurig in Atlanta. 

Plan in Advance When Possible

HR should ask employees with pending immigration status about any international travel plans far in advance, to confirm the worker's ability to travel and so the employer can explain the risks, Borovska recommended. "If an employee in his or her cap-gap period departs during the change-of-status pendency, he or she would be stuck abroad for some time before being able to return, and that may disrupt the employer's operations," she noted.

Foreign national employees should always double-check their ability to travel internationally before scheduling any travel plans, she added. "They should not rely on the ability to travel in the past or on outdated advice related to travel, as a small change in circumstances may prevent them from returning to the U.S., sometimes for an extended period of time," Borovska said.

If the graduate has a passport from a country subject to President Donald Trump's travel ban—Iran, Libya, North Korea, Somalia, Syria, Venezuela or Yemen—Greenfield said HR should caution them that they may experience delays when re-entering the U.S.

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