Foreign nationals with H-1B Cap petitions often have questions regarding travel while filing. While the answer may seem straightforward, it depends on the type of H petition filed. There are two options: requesting a change of status or consular processing. Below is a summary that clarifies some of these complex concepts:
Considerations of Filing a Change of Status H-1B Cap Petition:
A foreign national whose H-1B petition is filed and approved as a change of status (COS) will automatically be in H-1B status on October 1, or once the petition is approved, whichever is later.
When filing a COS H-1B petition, the foreign national can not travel internationally while the petition is pending with USCIS. If international travel occurs before the approval of the H-1B petition, USCIS will change the petition to be processed via consular processing. [See the next section for the implications of consular processing.]
As the beneficiary of an H-1B petition, foreign nationals are permitted to concurrently file for a change of status for their dependents. USCIS will typically adjudicate the H-1B and H-4 applications at the same time, and the dependents will automatically change to H-4 status on October 1, or once the application has been approved by USCIS, whichever is later.
Considerations of Filing an H-1B Cap Petition Under Consular Processing
The main difference between filing an H-1B Cap under consular processing (rather than as a change of status processing) is how the beneficiary’s status takes effect. While a change of status automatically occurs on October 1, under consular processing the beneficiary is required to travel internationally and apply for a visa at a US Consulate or Embassy to re-enter the U.S. in H-1B status. A foreign national can enter the U.S. in H-1B status as early as 10 days prior to October 1.
For beneficiaries currently abroad, their dependents may also apply for an H-4 visa using the H-1B approval notice. For beneficiaries currently in the US, dependents must accompany the principal applicant abroad and apply for H-4 visas to maintain their status.
Special Consideration for Individuals Relying on Cap-Gap Extension
Cap-gap allows those currently working in F-1 OPT that expires before October 1 to extend their work authorization until their H-1B status goes into effect on October 1. To use the cap-gap provision, the H-1B petition must be filed requesting a change of status, and the applicant will not be able to travel internationally while the petition is pending.
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