Can I Travel While my H-1B Filing is Pending After Graduating From College?

Every year, thousands of students in F-1 status complete their education programs and wish to work temporarily in the United States on H-1B status. Between the time when these students complete their education programs and the time when they plan to begin working, many of them desire to travel abroad for various reasons, such as to vacation, visit family, etc.

As an H-1B attorney, the most common question is this: “I graduated from Ohio State University in Columbus, Ohio. My prospective Employer in Michigan filed my H-1B application. During the pending H-1B petition is filed, can I travel outside the US?”

It is the unofficial policy of United States Citizenship and Immigration Services (USCIS) to permit travel when the person has an approved H-1B petition and an approved application to change status from F-1 to H-1B. If the H-1B visa is still pending, a travel outside the US may cause the request to change status be denied. The H-1B petition will be approved but you must interview at a US embassy abroad before you can enter the US on H-1B status.

The F-1 foreign national should depart from and reenter the US prior to the effective date of the change of status and after the H-1B is approved. Your H-1B attorney will most likely advise not to travel on F-1 in the event the application to change status is still pending.

Despite the apparent benefits of the limited ability to travel, F-1 students should be warned against traveling due to other issues that may make travel difficult for them.

For example, in some cases, F-1 students who were approved for H-1B status have had their registrations erased automatically and in error from the Student and Exchange Visitor Information System (SEVIS). In these cases, the students’ F-1 status could not be verified at the border, despite having valid Form I-20 Certificates of Eligibility for student status.

If travel is necessary, and the student knows that his or her SEVIS registration has been cancelled, they should take a letter from their school indicating that paperwork has been filed to fix the error. Even when the student takes such a letter, there is no guarantee that they will be issued a new visa or be readmitted to the US.

In addition to the SEVIS problem, Customs and Border Patrol (CBP) has also been a source of uncertainty. Some Customs officers question returning F-1 students who have approved H-1B petitions regarding their bona fide intent to enter the US temporarily. This is because foreign nationals in H-1B status can have “dual intent,” meaning they may pursue immigrant visas with no effect on their H-1B status, while F-1 students cannot have such dual intent.

Thus, although it is permissible for F-1 students with approved H-1B applications to travel, it is in their interest to refrain from doing so until their change of status becomes effective or, if travel is necessary, it should be done cautiously due to the SEVIS and “intent” issues described above.

Good luck for all new foreign graduates and H-1B visa applicants.

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