Frequently Asked Questions

In the topics listed below, we have attempted to address some of the most frequently asked questions we receive from businesses and individuals who possess a little or no understanding of immigration law issues.

Accordingly, these FAQs should be viewed as general information on the subjects they address, and not as specific legal advice. Immigration law is very complex, and the existence of certain facts in individual cases may significantly impact the eligibility for an immigration benefit.

If you believe one of these FAQs may affect you in any way, please contact an attorney in our Business Immigraton Law Practice Group for a more detailed analysis of your situation.

The Department of Homeland Security has issued guidance on the rights and responsibilities of lawful permanent residents (green card holders). It can be viewed on the USCIS website.

The office of US Citizenship & Immigration Services (USCIS) offers detailed instructions on how to replace permanent resident cards. Click here for the instructions that are available on the USCIS website.

Beginning in late December 2018 and peaking in March 2019, Customs and Border Protection (CBP) officers at various preclearance offices and land ports of entry began refusing to adjudicate blanket and individual L-1 petitions for readmission. During this time, the American Immigration Lawyers Association (AILA)  actively investigated these reports and worked with local CBP liaisons to get clarity on CBP’s inconsistent information on adjudications. Once it became clear that these reports were indicative of a national policy change or directive, AILA’s CBP Liaison Committee raised the issue with CBP Headquarters and requested that CBP provide clarification to the field that pursuant to NAFTA Canadian nationals are able to file L-1 petitions in conjunction with an application for admission at CBP ports of entry. Despite these efforts, AILA continued to receive reports that showed the number of CBP locations that had adopted the new policy was steadily growing.

In April 2019 the committee met with CBP HQ in person to discuss the ongoing issue impacting AILA members and their clients and to persuade CBP to rescind this policy. Subsequent to this meeting, the CBP Liaison Committee provided the agency with a legal memo outlining the legal and practical concerns brought forth by this change. While AILA believes this to be a change in policy, CBP relayed that in its interpretation, NAFTA’s implementing regulations require that only new Canadian L-1 petitions be adjudicated at CBP locations and that other “extensions” would be required to be filed with USCIS.

In response to engagement with AILA, the CBP did confirm that commuter/intermittent L-1s did not fall within the definition of extension and could be processed whether an initial period of stay or subsequent period. These petitions are filed for individuals that reside in Canada and commute to the United States to work in L-1 status for less than 50% of their work and thus are not subject to the normal time limitations in L status under 8 CFR §214.2(l)(12)(ii). CBP indicated that the difference for commuter/intermittent L-1’s which they consider neither initial cases or extensions would be reinforced to the field as they hold training on this new policy.

We advise Canadian L-1 status holders to reach out to their ZP attorney while they have ample time left on their current L-1 status to discuss options.

F-1 Travel Frequently Asked Questions

  • A Form I-20, endorsed for travel and signed by your DSO
  • You have been out of the United States for less than five months
  • A current passport valid for at least six months after the date of your reentry or, if you are from one of the countries listed below, a passport that is current through the date of entry
  • A valid, current visa or you travelled to contiguous country or adjacent island for less than thirty days
  • Financial information showing proof of necessary funds to cover tuition and living expenses

If you are from a visa exempt country, you do not need a visa to reenter the United States from the western hemisphere, but make sure that you present your I-20 to be admitted as an F-1 student and not a visitor.

You can stay in the United States on an expired F-1 visa as long as you maintain your student status. However, if you are returning home or traveling to a country where automatic revalidation does not apply, you must have a valid visa to return to the United States.

Ensure that you have all the documentation you need for your visa application and allow sufficient time for processing a new visa. The documentation you may need for a new visa includes, but is not limited to the following:

  • A Form I-20, endorsed for travel and signed by your DSO (see your DSO before you travel)
  • Original evidence showing proof of necessary funds to cover tuition and living expenses
  • Evidence showing your intention to return to your home country upon program completion, including evidence of compelling social and economic ties to your home country
  • If you have applied for or had optional practical training (OPT) approved, bring a copy of your Form I-20 endorsed for OPT and your Employment Authorization Document (EAD), if you have one

The Department of State recommends that you apply for a visa in your home country. For more information about visa applications visit the Department of State (DoS) website at

You can apply in a third country for a visa, but you will not be able to return to the United States until DoS issues your visa. In some cases, this could take several weeks if DoS requires a background check. If DoS denies your visa, you will not be able to return to the United States. Be sure to check the DoS website for specific information pertaining to each embassy or consulate.

If you have an expired visa and a terminated record, we strongly advise that you do not travel outside the United States until your SEVIS record shows that you are in active status. If you do travel, you may not be able to renew your visa or return to the United States.

You must renew your passport before re-entering the United States. In most cases, to enter the United States, you must have a passport that is valid for at least six months after the date you enter or re-enter.

However, the countries listed below have an agreement with the United States that allows you to enter on a current passport up to the actual date of expiration.

Try to keep your passport current at all times. You need to determine your country’s requirements and timelines for renewing passports. Many countries will allow you to renew your passport while in the United States. The other alternative is to renew your passport when you return home for a visit.

In some cases, you may want to delay leaving the United States until you have renewed your passport. You will not be able to re-enter the United States without a valid passport. If your expired passport has a valid visa, you can still use that visa if you kept the old passport. Present the old passport, along with the new passport when you reenter the country. The countries that have an agreement with the United States allowing entry with a passport until the date of expiration are as follows:

  • Algeria
  • Antigua and Barbuda
  • Argentina
  • Australia
  • Austria
  • Bahamas
  • Bangladesh
  • Barbados
  • Belgium
  • Bolivia
  • Bosnia-Herzegovina
  • Brazil
  • Canada
  • Chile
  • Colombia
  • Costa Rica
  • Cote D’Ivoire
  • Cuba
  • Cyprus
  • Czech Republic
  • Denmark
  • Dominica
  • Dominican Republic
  • Ecuador
  • Egypt
  • El Salvador
  • Ethiopia
  • Finland
  • France
  • Germany
  • Greece
  • Grenada
  • Guatemala
  • Guinea
  • Guyana
  • Hong Kong (certificates of identity and passports)
  • Hungary
  • Iceland
  • India
  • Ireland
  • Israel
  • Italy
  • Jamaica
  • Japan
  • Jordan
  • Korea
  • Kuwait
  • Laos
  • Latvia
  • Lebanon
  • Liechtenstein
  • Luxembourg
  • Madagascar
  • Malaysia
  • Malta
  • Mauritius
  • Mexico
  • Monaco
  • Netherlands
  • New Zealand
  • Nicaragua
  • Nigeria
  • Norway
  • Oman
  • Pakistan
  • Panama
  • Paraguay
  • Peru
  • Philippines
  • Poland
  • Portugal
  • Qatar
  • Romania
  • Russia
  • Senegal
  • Kitts and Nevis
  • Lucia
  • Vincent and the Grenadines
  • Singapore
  • Slovak Republic
  • Slovenia
  • South Africa
  • Spain
  • Sri Lanka
  • Sudan
  • Suriname
  • Sweden
  • Switzerland
  • Syria
  • Taiwan
  • Thailand
  • Togo
  • Trinidad and Tobago
  • Tunisia
  • Turkey
  • United Arab Emirates
  • United Kingdom
  • Uruguay
  • Venezuela
  • Zimbabwe

Yes, in most cases. You can usually revalidate an expired visa automatically when returning from a visit of less than thirty days to Canada, Mexico, or one of the islands adjacent to the United States provided that you have a valid Form I-20 and a valid unexpired Form I-94. This process is known as automatic visa revalidation.

The adjacent islands are:

  • Saint Pierre
  • Miquelon
  • The Dominican Republic
  • Haiti
  • Bermuda
  • The Bahamas
  • Barbados
  • Jamaica
  • The Windward and Leeward Islands
  • Trinidad
  • Martinique
  • Other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea

No, unless your travel plans include entry to any other country en route to these U.S. territories. You will need a valid Form I-20 and a valid unexpired Form I-94. Be sure that you do not have a terminated SEVIS record indicating that you are out of status.

No. The 60-day “grace” period is only to prepare to leave the country.

Yes, but traveling during this time should be undertaken with caution. USCIS may send you a request for evidence while you are away, however, so you would want to make sure you have provided a correct U.S. address both to your DSO and on the application and would be able to send in requested documents. Also, if USCIS approves your OPT application, you will be expected to have your EAD in hand to re-enter the United States. Like a request for further information, USCIS can only send the EAD to your U.S. address.

If USCIS has approved your OPT you will be expected to have your EAD in hand to re-enter the United States, in addition to your Form I-20, valid passport and visa, and a letter of employment if you have one. If you exceed the limits on unemployment while outside the United States, you will not be eligible to re-enter the United States in F-1 status.

An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a cap-gap period if:

  1. The student’s H-1B petition and request for change of status has been approved;
  2. The student seeks readmission before his or her H-1B employment begins(normally at the beginning of the fiscal year on October 1); and
  3. The student is otherwise admissible.

Please note that even if a F-1 student meets all of the requirements listed above, a U.S. Customs and Border Protection (CBP) officer always makes the final determination on whether to admit an application for admission after inspecting you at a port-of-entry. Applicants may refer to the DHS Study in the States page for a list of the documents needed to confirm eligibility for F-1 status.

Yes, as long as you are maintaining your status, you may legally remain in the United States with an expired F-1 or M-1 visa.

Automatic visa revalidation allows most F-1 students to take a trip of less than 30 days to countries contiguous to the United States and reenter on an expired visa provided you have proper documentation and have not applied for a new visa during the visit. This process revalidates your visa (making it eligible for the single trip), but does not renew it.

F-1 OPT, STEM OPT, CAP GAP Frequently Asked Questions

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

H-1B petitions that are timely filed for an eligible F-1 student that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1 while the student’s authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period commonly known as the “grace period”).

Once the petitioner timely files a request to change status to H-1B on October 1, the automatic cap-gap extension will begin. If the student’s H-1B petition is selected and approved, the student’s extension of status will continue through September 30. The extension of status will automatically terminate if the student’s H-1B petition is denied, withdrawn, revoked, rejected, or is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing. The student will have the standard 60-day grace period from the date the extension of status terminated or their program end date, whichever is later, to depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Please note: F-1 students who have entered the 60-day grace period are not authorized to work. If an H‑1B cap-subject petition is filed for a student who has entered the 60-day grace period, the student will receive the automatic extension of his or her F-1 status, but will not be authorized to work since the student was not authorized to work at the time H-1B petition was filed.

F-1 students who do not qualify for a cap-gap extension and whose periods of authorized stay expire before October 1 are required to leave the United States. They then need to apply for an H-1B visa at a consular post abroad and seek to be readmitted into the United States in H-1B status for the dates reflected on the approved H-1B petition.

Additionally, the cap-gap provision applies only to beneficiaries of cap-subject H-1B petitions, not to beneficiaries of cap-exempt H-1B petitions.

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new Employment Authorization Document (EAD) to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, issued to the student by his or her Designated School Official (DSO). This document serves as proof of continued employment authorization.

If a student chooses to obtain an updated Form I-20, the student should go to his or her DSO with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an updated Form I-20, showing an extension until June 1.

If the H-1B petition is selected by USCIS, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, indicating that the petition was filed and accepted. The Form I-797 must have a valid receipt number. The student’s DSO will issue another updated Form I-20, showing an extension until October 1. In such situations, the student can continue to work while the update to his or her Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.

If an H-1B petition filed for an F-1 student with a cap-gap extension is denied, rejected, revoked, or withdrawn, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition) to depart the United States.

The 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to a status violation, misrepresentation, or fraud. In such cases, the F-1 student is ineligible for cap-gap extension of status and the 60- day grace period. Similarly, the 60-day grace period and cap-gap extension of status does not apply to an F-1 student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, students are required to immediately leave the United States.

F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List (PDF), are employed by employers enrolled in and maintain good standing with E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 24-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on our Optional Practical Training Extension for STEM Students (STEM OPT) page or the STEM OPT Hub.

Students who are eligible for a cap-gap extension of post-completion OPT employment and F-1 status may apply for a STEM OPT extension during the cap-gap extension period.

However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day departure grace period.

The law allows you to be unemployed during your OPT period for a limited number of days.

Laid off or terminated by the H-1B employer: If the student has been approved to change their status to an H-1B nonimmigrant but is laid off/terminated by the H-1B employer before the date they officially obtain H-1B status, the student can retrieve any unused OPT if he or she has an unexpired EAD issued for post-completion OPT. The student will remain in F-1 status and can continue his or her OPT using the unexpired EAD.

The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status goes into effect. This will prevent the student from changing to H-1B status. Once the petition has been revoked or withdrawn, the student must provide his or her DSO with a copy of the USCIS acknowledgement of withdrawal (the notice of revocation). The DSO may then contact the SEVIS helpdesk to request a data fix in SEVIS to prevent the student from being terminated in SEVIS.

If USCIS does not receive the withdrawal request before the date that the student is supposed to change status to an H-1B nonimmigrant, then the student will need to stop working, file Form I-539, Application to Extend/Change Nonimmigrant Status to request F-1 status, and wait until the change of status request is approved before resuming employment.

Student finds a new H-1B job: The F-1 student can continue working with his or her approved EAD while the data fix in SEVIS is pending if:

  • The (former) H-1B employer withdrew the H-1B petition on time;
  • The student finds employment appropriate to his or her OPT;
  • The period of OPT is unexpired; and
  • The DSO has requested a data fix in SEVIS.

If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Public Access File Frequently Asked Questions

Employers must make the following materials available to the public within one working day of filing the Labor Condition Application (LCA) with the Department of Labor:

  1. The LCA cover pages
  2. Copy of the filed LCA
  3. Prevailing Wage Determination or survey results
  4. Documentation the notice requirement was satisfied (physical postings or electronic posting)
  5. Signed (original signature) and certified LCA
  6. Actual wage memo
  7. Documentation showing rate of pay
  8. Statement of Benefits offered to workers
  9. Acknowledgement of receipt of the certified LCA by employee

Yes, but we recommend you also keep a copy of the original signed and certified LCA on hand as the regulations do not specifically authorize the practice of keeping an electronic signature.

Physical Public Access Files must be kept at either 1) The employer’s principal place of business; or 2) The worker’s place of employment as specified in the LCA.

You must retain a copy of the PAF for a period of one year beyond the last date on which any nonimmigrant is employed under the LCA. If no nonimmigrants are employed, one year from the date the LCA expired or was withdrawn.

Any member of the public can review the contents of the PAF. Moreover, in the case of an audit, DOL investigators have the right to review the files.

Failure to comply with the regulations governing the maintenance of PAFs can result in a range of penalties including: monetary fines, assessment of back wages to undercompensated employees; and debarment from using the H-1B program.

I-9 Frequently Asked Questions

If the employee is getting paid for the training, then yes, you must complete a Form I-9.

No, they complete their own Form I-9s for their company.

You may complete it as soon as you have offered a candidate a position and the candidate has accepted.

You can have an authorized representative complete the Form I-9 including an agent or a notary public.

No. You can choose whether to keep documents or not but must choose a consistent practice for all employees.  However, if you participate in E-Verify, you must retain a copy of any document an employee presents that triggers photo matching.

No.  The employee must present an original document.  The only exception is a certified copy of a birth certificate.

Yes. Cards with any of the following annotations are not acceptable:

  • Not valid for employment.
  • Valid for work only with DHS authorization.
  • Valid for work only with INS authorization.

No. DHS has not issued any guidance on this.  Employers must continue to comply with all laws regarding employment authorization verification.

Employers must retain a Form I-9 for three years after the date of hire or one year after the date of the employee’s termination, whichever is later.

Yes. Employers can scan and upload the original, signed Form I-9 and store them electronically. They must remain in a locked pdf. format.  If you maintain paper copies of Forms I-9, they must have original handwritten signatures.

No.  The USCIS has interpreted Section 105 of AC21 to only allow H-1B status holders to port.  An H-4 status holder must wait for the H-1B change of status to be approved before being able to start working in H-1B status.

You should enter the I-797A approval notice’s expiry date in Section 1 and the I-94 expiry date in Section 2.  However, you must reverify the H-1B status holder’s work authorization by the earlier of the two dates.

Yes. The university’s designated school official is required to enter the employer’s name on the I-20 in order for the employee to work for you.

The school ID expires at the end of the school year printed on the ID.