Members of the American Immigration Lawyers Association (AILA) recently noted at a USCIS headquarters meeting that the Q & A on Post-Completion Optional Practical Training and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations available on the USCIS website states that a student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. However, AILA members noted that this statement conflicts with the regulations on this subject, which indicate that an F-1 student who is the Beneficiary of an H-1B petition filed for change of status and a valid post-completion OPT EAD may travel and return to the U.S. after a temporary absence and resume OPT employment if the student has a valid F-1 visa stamp, a properly endorsed I-20, and an EAD card which has been automatically extended under 8 CFR §214.2(f)(5)(vi)(A), provided the student is otherwise admissible.
USCIS responded that reentering the United States involves Customs and Border Protection and the Department of State, so it would reach out to these agencies. However, the Service also stated that it would continue to follow its policy as currently posted on its website. F-1 students should be aware that USCIS is taking this position and consult with an attorney before traveling outside the United States.
