Converting from an H-1B to a B-1 or B-2 is a time-tested legal way for unemployed people to stay in the United States, but this path is now under scrutiny.
When an H1-B visa holder loses his or her job, changing status from an H-1B to a B-1/B-2 visa is considered a safe and legal way to remain in the United States. But now USCIS will not allow this, even if all legalities are maintained. There are no new rules outlawing this practice, but USCIS has archived website pages indicating that job applications and interviews may be permitted under B-1 or B-2 classifications. Immigration experts say it’s unclear whether “archive” means “revoked” and whether USCIS now considers this illegal. But there have been several cases in recent months where USCIS is not allowing past H-1B people to transfer to B-1/B-2 status after losing their jobs.
From H-1B to B-1/B-2: What are the issues?
When H-1B workers lose their jobs, they have a 6-0 day grace period to find another job. For years, immigration experts have advised them to file Form I-539 and change their status to B-1 or B-2. Both B visas are for tourists, and the B-1 visa is for business purposes. But now they are being refused because job hunting is not a permitted activity for tourist visa holders. If a person switches from a B-1/B-2 to an H-1B after finding a job, it becomes easier for the government to take action because they can say the person never had “travel” intentions. Immigration attorney Emily Neumann said USCIS has not made it clear whether they have changed their policy because conversions from H-1B to B-2 were previously allowed. By law, you cannot start working on a B-1 or B-2 visa, but you are not prohibited from looking for work. “The statute has not been amended to prohibit job search under B-2. The statute has not been rewritten. Until those legal authorities change, the prohibition remains what Congress enacted: employment, not exploration,” Neumann said.
What has changed? Rigorous review of B-2 petitions
Neumann said the recent denials show that post-H-1B layoff B-1/B-2 petitions are subject to heightened scrutiny. This does not mean that a B-2 petition is absolutely impossible, but applicants must document their case carefully. they must
- Demonstrate their non-immigrant intention not to reside permanently
- Prove that you have the financial ability to support yourself without a job in the United States
- Have a residence outside the United States and intend to return
