Kamal Ghorui
Switching from H-1B to B-1 or B-2 was a time-tested legal path to stay in the US when one loses their job but this route has now come under scrutiny.
Changing the status from H-1B to B-1/B-2 visa has been considered as a safe and legal path to stay in the US when an H1-B visa holder loses their job. But now the USCIS is not allowing this, even if all legalities are maintained. There has been no new rule calling this illegal but the USCIS archived the website pages that indicated that job searching and interviewing may be permissible under B-1 or B-2 classification. According to immigration experts, it’s not clear whether ‘archived’ means ‘rescinded’ and whether the USCIS now considers this as illegal. But several cases surfaced in recent months where USCIS did not allow past H-1Bs to switch to B-1/B-2 status after they lost their jobs.
From H-1B to B-1/B-2: What is the issue?
When an H-1B worker loses employment, they get 6-0-day grace period to look fr another job. For years, immigration experts advised them to file Form I-539 and change their status to B-1 or B-2. Both these B visas are meant for tourists, with B-1 for business purposes. But now there are denials as job searching is not a permissible activity for a tourist visa holder. And if one switches from B-1/B-2 to H-1B after finding a job, then it becomes easier for the administration to take a step as they can say that the individual never had ‘tourist’ intent. Immigration attorney Emily Neumann said USCIS has not made it clear whether they have changed their policy because earlier switching from H-1B to B-2 was permitted. Going by the law, one can’t start working under B-1 or B-2 visa but exploring jobs is not prohibited. “The statute has not been amended to prohibit job searching under B-2. The regulation has not been rewritten. Until those legal authorities change, the prohibition remains what Congress enacted: employment, not exploration,” Neumann said.
What changed? Heightened scrutiny on B-2 filings
Neumann said that the recent denials suggest that B-1/B-2 filings after H-1B layoff are under heightened scrutiny. It does not mean that B-2 filings are categorically impossible but applicants must document their case carefully. They have to
- show non-immigrant intent that they don’t plan to stay permanently
- prove financial ability to support themselves in the US without a job
- have a residence outside the US where they intend to return
