H-1B FAQ

If you are applying to change from F-1 international student status to H-1B status after graduation, traveling outside the US may cause the following serious complications to your immigration status:

• Though your H-1B petition may still be approved, your request to change your status in the US may be denied. In this case, you will likely have to apply for an H-1B visa at a US embassy abroad before you can enter the US on H-1B status.
• In some cases, F-1 students approved for H-1B status may have their SEVIS registrations automatically erased in error by the system. In this case, the student may have trouble reentering the US on her F-1 visa. Due to the change in the SEVIS system, the student’s F-1 status cannot be verified at the border, despite the student having a valid I-20 Form. A student might take a letter from her school indicating that paperwork has been filed to fix the error. However, there is no guarantee that the student will be issued a new F-1 visa or readmitted in this scenario.
• A student, with an approved H-1B petition, who needs to maintain her F-1 status, may also face difficulty at the point of entry into the US. The immigration officer inspecting the returning student at the point of entry might question the student’s 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; F-1 students cannot have such dual intent.

Therefore, even though it is permissible for an F-1 student with approved H-1B petition to travel, it is best to refrain from doing so until the change of status becomes effective or, if travel is necessary, it should be done cautiously due to the SEVIS and “intent” issues described above.

Remove the I-94 card from the lower right portion of your I-797 Approval notice. Staple this I-94 card to the old I-94 that is already in your passport. Be sure to retain the approval notice in a safe place; if you lose this notice it may take a while to obtain a new notice, and may also require additional fees.

First Time Travel – When you travel outside of the US for the first time after you receive your H-1B status, you and your H-4 dependents will need to apply for H visas. (That is, unless you are a Canadian citizen.) You may apply for your H visa in your home country, or possibly in Canada.

Before you travel, be sure to schedule a visa interview at the Consulate where you are applying for your visa. You should be able to do this electronically. After you schedule your interview, you will be given further instructions as to what forms to fill out, the associated fees, whether ID photographs are needed, and other documentation needed (e.g. proof that an H-1B petition was filed on your behalf, and proof that you continue to be employed by your employer). (Please note that you will need to bring additional documents if your dependent is also applying for H-4 status.) Processing times for your H visa may vary depending on the consulate you go before.

After Visa Issued – When traveling out of the US while your H-1B status is valid, in addition to your passport with your H visa stamp, you should bring your original H-1B approval notice, and have available to present proof of your continued employment with your H-1B employer.

Your I-94 card indicates the period of time that you are allowed to be in the US. Be sure to look carefully at your I-94 card after the inspector has completed your inspection process to ensure that the inspector date stamped your I-94 card, has written H-1B on the card, and has written the correct end date for your H-1B status. If the inspector has not done this, respectfully request to know why and request permission to see someone in secondary inspections to see if the date can be corrected before you leave the inspections area.

Please note: If your passport will expire in less than one year from the time you enter, you will likely be inspected into the country for a period of time less than that granted on your Approval Notice. The officer inspecting you will not be able to correct this. If this is the case, please contact our office as soon as possible to see what action you need to take in order to maintain your H-1B status.

Your employer must provide you with the reasonable cost of return transportation to your last country of residence. The law does not require an H-1B employer to pay the reasonable cost of the airline ticket for returning family members or for the transfer of an H-1B worker’s property to her home country. Also, there is no obligation for an employer to provide an H-1B worker with return transportation costs if the H-1B employee chooses to remain in the US. If an employee believes that her employer is not complying with the above requirement, a complaint may be filed with USCIS. The employer must also notify USCIS of any material changes in the terms and conditions of an H-1B worker’s employment. The employer should send a letter to USCIS, notifying of the agency of the termination.

The Department of Labor prohibits benching H-1B employees without full pay. An H-1B employee who is temporarily non-productive due to employer’s request or lack of work must continue to be paid her regular wages. This requirement ends upon bona fide termination of the employee’s position.

When the employment of an H-1B employee ends, her lawful nonimmigrant status terminates on the same day. There is no grace period. Remaining in the US after the termination of H-1B employment is a failure to maintain lawful immigration status. The failure to maintain lawful immigration status may affect the employee’s ability to (1) remain in the US, (2) be approved for another lawful nonimmigrant status, and (3) be approved for permanent residence.

Under the law, an H-1B employee who remains in the US after termination of nonimmigrant status is not eligible to change, or extend, her nonimmigrant status. However, USCIS might still permit nonimmigrant status for a terminated employee if the employee is able to get another H-1B petition filed by a new employer within 30 days (possibly 60 days) of the termination.