Travel Guidance During H-1B Processing (Regarding Potential $100,000 Issue)

We have recently received a number of inquiries regarding international travel during the H-1B filing period or prior to the October 1 effective date, particularly whether such travel may trigger the $100,000 issue.

Under current policy and practice, travel is not automatically prohibited, but the timing and manner of travel are critical. The following 3 scenarios are generally the more prudent options to consider:

1. Remain in the United States and depart only after October 1, once H-1B status takes effect.

If the H-1B petition is filed with a request for Change of Status (COS) and you intend to obtain H-1B status in the United States, you should avoid international travel while the case is pending. In particular, if you leave the United States after the filing package is submitted and before the COS is approved, the COS will generally no longer take effect, and you may need to apply for an H-1B visa abroad, which could potentially trigger the $100,000 issue. For this reason, remaining in the United States until H-1B status takes effect is the safest approach.

2. Depart before the H-1B filing, return in F-1 status, and then file the H-1B petition

If you depart before the H-1B petition is filed, the petition may still be filed with a request for COS after you return to the United States. After filing, further international travel should be avoided to preserve the intended COS in the United States.

3. H-1B approved, but travel is required before October 1

If the petition is approved early and you depart the United States before October 1, you generally cannot re-enter and wait for the COS to take effect on October 1, since the I-94 will change upon reentry. In that situation, you would typically either return in F-1 status and travel again around September to obtain an H-1B visa for reentry, or remain abroad and apply for the H-1B visa around September before returning in H-1B status. Please note that entry in H-1B status is generally allowed no earlier than 10 days before October 1.

In general, if your case is intended to proceed through COS, it is advisable to avoid non-essential travel prior to the H-1B effective date. If travel is necessary, we recommend evaluating the timing and potential impact in advance.

If you have any questions regarding your specific situation or would like assistance in assessing your travel plans, please feel free to contact our office.