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宝强说得好，“有钱没钱，回家过年”。如果你已经是H1B的拥有者，或是还在OPT，想必能否回家这个问题肯定是被问过很多次，之前有说法是“不可以!”或是“不建议!”，但是我找了很多网上的帖子经验，基本得出结论是“可以回!”。下面结合一篇来自文学城的网友帖子，将这个问题的多面性和多种情况为大家解惑。
从毕业到拿到H1B共三个阶段：
毕业到拿到EAD卡
OPT期间(拿到EAD卡)
OPT转H1B期间(Cap-Gap)
根据网友的提示，搜索了USCIS的官方网站关于Cap-Gap的解释，下面大家贴出原文提供权威参考：
Extension of Post Completion OptionalPractical Training (OPT) and F-1 Status for Eligible Students under the H-1BCap-Gap Regulations
The period of time when an F-1 student’sstatus and work authorization expire through the start date of their approvedH-1B employment period is known as the "Cap-Gap".
Cap-Gap occurs because an employer may notfile, and USCIS may not accept, an H-1B petition submitted more than six monthsin advance of the date of actual need for the beneficiary’s services ortraining. As a result, the earliest datethat an employer can file an H-1B cap-subject petition is April 1, for thefollowing fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change ofstatus request, the earliest date that the student may start the approved H-1Bemployment is October 1.
Cap-Gap Extensions
Current regulations allow certain studentswith pending or approved H-1B petitions to remain in F-1 status during thecap-gap period. This is referred to as filling the "cap-gap," meaningthe regulations provide a way of filling the "gap" between the end ofF-1 status and the beginning of H-1B status that might otherwise occur if F-1status is not extended for qualifying students.
Eligibility for an Extension
H-1B petitions that are timely filed, onbehalf of an eligible F-1 student, that request a change of status to H-1B onOctober 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 duringthe H-1B acceptance period which begins April 1, 2013 while the student'sauthorized F-1 duration of status (D/S) admission was still in effect(including any period of time during the academic course of study, anyauthorized periods of post-completion Optional Practical Training (OPT), andthe 60-day departure preparation period, commonly known as the "grace period").
Once a timely filing has been made,requesting a change of status to H-1B on October 1, the automatic cap-gapextension will begin and will continue until the H-1B petition adjudicationprocess has been completed. If thestudent’s H-1B petition is selected and approved, the student’s extension willcontinue through September 30. If thestudent’s H-1B petition is denied, withdrawn, revoked, or is not selected, thestudent will have the standard 60-day grace period from the date of therejection notice or their program end date, whichever is later, to prepare forand depart the United States.
Students are strongly encouraged to stay inclose communication with their petitioning employer during the cap-gapextension period for status updates on the H-1B petition processing.
Please note: F-1 students who have enteredthe 60-day grace period are not employment-authorized. If an H-1B cap-subject petition is filed onthe behalf of a student who has entered the 60-day grace period, the studentwill receive the automatic cap-gap extension of his or her F-1 status, but willnot become employment-authorized (since the student was notemployment-authorized at the time H-1 petition was filed, there is noemployment authorization to be extended).
Those Not Qualified for an Extension
F-1 students who do not qualify for acap-gap extension, and whose periods of authorized stay expire before October1, are required to leave the United States, apply for an H-1B visa at aconsular post abroad, and then seek readmission to the United States in H-1Bstatus, for the dates reflected on the approved H-1B petition.
Proof of Continuing Status
To obtain proof of continuing status, astudent should go to their Designated School Official (DSO) with evidence of atimely filed H-1B petition (indicating a request for change of status ratherthan 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 a preliminary cap-gap I-20 showing an extensionuntil June 1.
If the H-1B petition is selected foradjudication, the student should return to his or her DSO with a copy of thepetitioning employer’s Form I-797, Notice of Action, with a valid receiptnumber, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gapI-20 indicating the continued extension of F-1 status.
Denied H-1B Petitions
If USCIS denies, rejects, or revokes anH-1B petition filed on behalf of an F-1 student covered by the automaticcap-gap extension of status, the student will have the standard 60-day graceperiod (from the date of the notification of the denial, rejection, orrevocation of the petition) before he or she is required to depart the UnitedStates.
For denied cases the 60-day grace perioddoes not apply to an F-1 student whose accompanying change of status request isdenied due to the discovery of a status violation, misrepresentation, orfraud. The student in this situation isnot eligible for the automatic cap-gap extension of status or the 60-day graceperiod. Similarly, the 60-day graceperiod and automatic cap-gap extension of status would not apply to the case ofa student whose petition was revoked based on a finding of a status violation,fraud or misrepresentation discovered following approval. In both of these instances, the student wouldbe required to leave the United States immediately.
Travel during Cap-Gap Extension Period
A student granted a cap-gap extension whoelects to travel outside the United States during the cap-gap extension period,will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular postabroad prior to returning. As the H-1Bpetition is for an October 1 start date, the student should be prepared to adjusthis or her travel plans, accordingly.
Unemployment Limits
The 90-day, or 120-day for STEM OPT,limitation on unemployment during the post-completion OPT authorizationcontinues during the cap-gap extension.
STEM OPT Extensions
F-1 students who receive science,technology, engineering, and mathematics (STEM) degrees included on the STEMDesignated Degree Program List, are employed by employers enrolled in E-Verify,and who have received an initial grant of post-completion OPT employmentauthorization related to such a degree, may apply for a 17-month extension ofsuch authorization. F-1 students mayobtain additional information about STEM OPT extensions on the Student andExchange Visitor Program website at www.ice.gov/sevis.
Students who are eligible for a cap-gapextension of post-completion OPT employment and F1-status may apply for a STEMOPT extension during the cap-gap extension period.
However, such application may not be madeonce the cap-gap extension period is terminated (if the H-1B petition isrejected, denied, or revoked), and the student has entered the 60-day departurepreparation period.
Start Date Issues
If the students' OPT end dates areshortened to September 30, even though their H-1B employment would not beginuntil a later date, the student should contact their DSO. The DSO may request a data fix in SEVIS bycontacting the SEVIS helpdesk.
Changes in Employment
Laid Off/Termination from H-1Bemployer: If the student has an approvedH-1B petition and change of status, but is laid off/terminated by the H-1Bemployer before the effective date, and the student has an unexpired EAD issuedfor post-completion OPT, the student can retrieve any unused OPT. The studentwill remain in student status and can continue working OPT using the unexpiredEAD until the H-1B change of status goes into effect. The student also needs to make sure thatUSCIS receives a withdrawal request from the petitioner before the H-1B changeof status effective date. This willprevent the student from changing to H-1B status. Once the petition has been revoked, thestudent must provide their DSO with a copy of the USCIS acknowledgement ofwithdrawal (i.e., the notice of revocation). The DSO may then request a datafix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1Beffective date, by contacting the SEVIS helpdesk.
If USCIS does not receive the withdrawalrequest prior to the H-1B petition change of status effective date, then thestudent will need to stop working, file a Form I-539 to request reinstatement,and wait until the reinstatement request is approved, before resumingemployment.
Student finds a new H-1B job: The student can continue working with his orher approved EAD while the data fix in SEVIS is pending if the (former) H-1Bemployer timely withdrew the H-1B petition and the following conditions aretrue:
The student finds employment appropriate tohis or her OPT;
The period of OPT is unexpired; and
The DSO has requested a data fix in SEVIS.
Note: If the student had to file Form I-539to request reinstatement to F-1 student status, the student may not work orattend classes until the reinstatement is approved.
Pending Request to Change OPT End Date
Working during request: If the H-1Brevocation occurs before October 1, the student may continue working pastOctober 1 while the data fix remains pending, because the student will still bein valid F-1 status.
If the H-1B revocation occurs on or afterOctober 1, the student will need to stop working before October 1, apply forreinstatement, and wait until the reinstatement request is approved beforeresuming employment.
Maintaining Valid F-1 Status: If the H-1B revocation occurs before the H-1Bchange of status effective date, the student is still in F-1 status while thedata fix is pending.
If the H-1B revocation occurs after theH-1B change of status effective date, the student will not be in valid F-1status and will therefore either need to apply for reinstatement or depart theUnited States.
本文转载自“泰勒展开时”，Office-Hour诚意推荐。
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