Can I convert H-1B to B-1/B-2 after being fired from a job in the US? Immigration experts explain what to keep in mind
Switching from H-1B to B-1 or B-2 was a time-tested legal path to remain in the US when one loses their job, but this path has now come under scrutiny.
Changing status from H-1B to B-1/B-2 visa is considered a safe and legal way to stay in the US if an H-1-B visa holder loses his/her job. But now USCIS is not allowing this, even if all legalities are maintained. There is no new rule outlawing this but USCIS has archived website pages that indicate that job searches and interviews may be permitted under the B-1 or B-2 classification. According to immigration experts, it is unclear whether ‘archived’ means ‘canceled’ and whether USCIS now considers it illegal. But several cases have emerged in recent months where USCIS did not allow former H-1Bs to switch to B-1/B-2 status after losing their jobs.
From H-1B to B-1/B-2: What’s the issue?
When an H-1B worker loses employment, he or she gets a 6-0 day grace period to look for another job. For years, immigration experts advised them to file Form I-539 and change their status to B-1 or B-2. Both of these B visas are for tourists, while B-1 is for business purposes. But now it is being denied because job searching is not an acceptable activity for a tourist visa holder. And if someone switches from B-1/B-2 to H-1B after finding a job, it becomes easier for the administration to take action because they can say the person never had ‘tourist’ intentions. Immigration attorney Emily Newman said USCIS has not clarified whether they have changed their policy since switching from H-1B to B-2 was previously allowed. By law, one cannot start work under a B-1 or B-2 visa but looking for jobs is not restricted. Newman said, “The statute has not been amended to prohibit job searches under B-2. The regulation has not been rewritten. Unless the legal authority changes, the prohibition remains what Congress enacted: employment, not exploration.”
what changed? Strict scrutiny on B-2 filing
Newman said the recent denials show that B-1/B-2 filings following H-1B layoffs are being scrutinized more closely. This does not mean that filing a B-2 is impossible at all, but applicants must document their case carefully. they have to
- Non-immigrant intent to show that they do not plan to stay permanently
- Prove financial ability to support yourself without a job in the US
- They have a place of residence outside the US to which they intend to return