International Travel Tips for Foreign Nationals in the Current Immigration Climate

ISSUE: Foreign nationals traveling abroad during the summer and holiday months may encounter circumstances that impact their return to the U.S. and even necessitate unforeseen delays in obtaining visas at the U.S. consulates abroad. October 1 is an important deadline for the automatic change of status for visa students working pursuant to the "cap-gap" work authorization. Many delays or inadvertent problems can be avoided with proper planning.

Read more Insight & Impact from August 2017:

• What’s that Smell? Medicinal Marijuana Spells Change in the Air for Employee Drug Testing Policies
• New ERISA Disability Regulations–Comply Now or Wait for a Possible Delay?
• OSHA's Final Rule "Improve Tracking of Workplace Injuries and Illnesses" Imposes New Electronic Submission Requirements on Employers

IMPACT: As foreign nationals travel abroad during the summer and holiday months, here are a few items to consider when exiting and reentering the United States to make travel plans run smoothly:

• We have witnessed much back and forth this year between the Trump Administration and the federal courts regarding the President's Travel Ban. Currently, the travel ban applies to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who cannot demonstrate a "bona fide relationship" with a qualifying individual, business or organization in the United States.
• Heightened scrutiny has led to delays in visa issuance at U.S. consulates around the world. If an employee requires a new visa stamp to return to the United States, he/she should schedule a visa appointment early in the trip and have a plan if the visa application is held up in administrative processing, which can cause delays lasting several weeks or longer.
• F-1 visa students working pursuant to "cap-gap" work authorization who leave the U.S. before USCIS approves the H-1B petition will abandon the request to automatically change status from F-1 to H-1B on October 1. Although the underlying H-1B petition may still be approved, the individual will be required to exit the United States, obtain an H-1B visa at a U.S. consulate, and then reenter in order to effectuate an H-1B status. In certain situations, an F-1 student may lose his/her work authorization after traveling abroad during the cap-gap. However, if the H-1B petition and change of status request have already been approved, the employee usually may travel abroad without disrupting his work authorization and his/her H-1B status will still go into effect on October 1.
• Premium Processing for most H-1B extension categories remains suspended. Lengthy processing times can complicate international plans if an employee requires a new H-1B visa stamp while abroad.

For more information on determining independent contractor status, please contact your Quarles & Brady attorney or:

• Eric Ledbetter: (312) 715-5018 / eric.ledbetter@quarles.com
• Emily Shircel: (414) 277-5217 / emily.shircel@quarles.com.