From H-1B Layoff to B-1/B-2 Status and Back to H-1B: What USCIS Guidance Allows
This article outlines the 60-day grace period for H-1B employees after a layoff, explains that changing to B-1/B-2 visitor status can allow a stay of up to about six months, describes USCIS practice since March 2023 of adjudicating expedited I-129 petitions together with pending I-539 applications, and notes that while job searching is allowed during B status, work may begin only after a new H-1B petition is approved.
When an H-1B employee is laid off, they generally receive a 60-day grace period to find a new job, change status, or leave the United States. Changing to B-1/B-2 visitor status is one viable option, allowing the person to remain in the U.S. for up to six months while job searching. This additional time, free from the pressure of an imminent deadline, can help them find suitable employment opportunities.
On its page titled "Options for Nonimmigrant Workers Following Termination of Employment," USCIS lists B status as one of the recommended options. The page states: "Other possible nonimmigrant options include student status (F-1) or visitor status (B-1 or B-2)." This shows that switching from H-1B to B status is not an unconventional process but a standard option recognized by USCIS. Likewise, switching back from B status (whether already approved or still pending) is a similarly routine procedure.
In March 2023, USCIS introduced a new policy: if the applicant's new employer files a premium processing request for the H-1B petition, the earlier H-1B-to-B status change application will also receive priority processing. This streamlined process significantly reduces the uncertainty and waiting time associated with changing status, thereby avoiding the situation where "a new H-1B petition is filed, but because the old H-1B-to-B-1/B-2 application has not yet been approved, the new H-1B cannot be approved either."
In its FAQ under the "Change of Status" text, USCIS explains how it expedites the process of changing status back to a work visa (such as H-1B):
Question: If I find a new employer, and they file an I-129 petition with a request for premium processing service, will my pending I-539 application to change status to B-1 or B-2 be prioritized? Answer: If an employer files Form I-129 on your behalf with a request for premium processing service, we generally adjudicate the pending I-539 and the I-129 concurrently within the premium processing timeframe and issue a simultaneous decision. This means that the adjudication of the I-129 will not be delayed by the pending I-539. There is no need to formally request prioritization of the pending I-539. If we approve the I-129 petition, including any requested change of status, you will generally be granted the nonimmigrant status requested on the I-129 petition (rather than the status requested on the I-539) and may begin working. In such a case, you generally do not need to depart the United States to obtain the requested nonimmigrant status.
It is important to note that during B-1/B-2 status, job searching and interviewing are permitted activities. However, the applicant must wait until the new H-1B petition and change of status are approved before beginning work. This ensures compliance with immigration regulations while actively seeking employment opportunities.
In summary, USCIS recommends that laid-off H-1B workers change to B-1/B-2 status to gain valuable additional time to remain in the U.S. and look for a new job. If a new job is found while the B-1/B-2 application is still pending, the process of switching back to H-1B status can be streamlined. This flexibility is particularly beneficial in the current economic environment and given the challenges of finding suitable employment.
