Laid off on H-1B and thinking of B1/B2 visa?

I am writing this article for individuals who were impacted due to mass layoffs in tech this year while working on H-1B visa. Many don't know but a 60 day timer starts for them with only a handful of options. Some of them are - return to their home country, find another employer who's willing to sponsor H-1B within the 60 day grace period, file for adjustment of status to other visa classes, switch to dependent H-4 visa etc. However, in case they are at a risk of exhausting the 60 day grace period without securing employment or there is no other way, one of the options is applying for a change of status to B-1/B-2 visa (Business/Visitor visa). One thing to highlight here is that this application needs to be made at least a few days before the H-1B grace period ends. It is important to understand that searching for employment and interviewing for a position are permissible B-1/B-2 activities as per USCIS statutes* and recommended by several immigration attorneys**. Therefore, this is often recommended as a compelling option and one of the several alternatives for such individuals who have a lot invested in US socially, financially and professionally.

In recent months, extremely long processing times for a change of status to B1/B2 (sometimes extending beyond 8-9 months), leaves the applicants in a limbo wherein they cannot leave US at the risk of abandoning their application and waiting too long in a "pending B1/B2 status". As a result it gives prospective employers cold feet in terms of new H-1B filing, as the candidate does not have a visa status until USCIS gives a decision months down the line. When they do give a decision, the visa status is retroactively provided from the date of application. B1/B2 allows you to stay in US for a total of 6 months. It is imperative that you stay faithful in your intent and state in your application that you need time to look for a job while on B2 and you will switch to H-1B to start working or leave US at the end of B2 validity.

There is some misinformation and gaps in understanding on how this transition would work. Some employers mandate doing consular processing which has it's own set of challenges ranging from months long scheduling delays at foreign consulates to a risk of receiving 221(g) pink slips leading to applicants getting stuck in their home countries away from their families. This leads to highly talented, well qualified and experienced candidates losing out on good opportunities, because no company wants to deal with uncertain processing times. In most cases they avoid this risk choosing to go for other candidates that may start sooner. Moreover, there is confusion in terms of how to proceed with changing immigration laws and directives as lawyers sometimes are unaware of these updates. The information here aims to provide lesser known guidance to such individuals and immigration teams at prospective employers on how can they proceed on such cases to obtain H-1B visa.

This guidance assumes you have an immigration application (I-140) approved and you are just waiting on your priority date to become current. This means your new petition for H-1B (I-129) is not subject to the annual lottery. In case you have a "cap-exempt" employer, it doesn't matter if you have I-140 approved or not, you're not subject to the lottery. It also assumes that the employer files for H-1B with premium processing.

Please understand that I am not an immigration lawyer, but someone who has first hand experience with several odd immigration situations over past decade along with my spouse. I have networked and spoken with several people facing immigration woes spanning decades and I deeply sympathize with people in this unfortunate situation as a result of lay offs and absurdly long immigration wait times. Don't even get me started on employers resorting to predatory tactics making candidates sign one-sides retainers, pay premium processing fees, attorney fees, low balling compensation to offset immigration processing costs. I'll save the rants and heartburn over this for another article!

GUIDANCE:

As per the official?guidance?from USCIS, if H1B is filed in premium processing while B2 is pending, they approve B2 immediately during the H1B premium processing window and simultaneously they give a decision on change of status from B2 to H1B. In this case, consular processing is not needed as the B2 approval and simultaneous adjudication of B2 and H1B will happen while you are waiting in the US.?This is the directive that was officially announced on 3/10/2023 and published on the USCIS website on the link below.?I have also confirmed this from the USCIS support team as well as 2 separate immigration attorneys that I consulted myself. I also know two first-hand case of "change of status" that are completed successfully for top tier tech companies in the US.

Link:??https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/options-for-nonimmigrant-workers-following-termination-of-employment. Scroll down to this question under "Change of Status" section:

Q: Will my pending I-539 change of status application to B-1 or B-2 be prioritized if I find a new employer who files an I-129 petition with a request for premium processing service?

A: If an employer files a Form I-129 petition on your behalf, along with a request for premium processing service, USCIS will generally process the pending I-539 and the I-129 together during the premium processing timeframe and issue concurrent decisions. This means there should be no delay in adjudication of the I-129 because of the pending I-539. No formal request is required for the pending I-539 to be prioritized. If USCIS approves the I-129 petition, including any requested change of status, then you generally will obtain the nonimmigrant status requested on the I-129 petition (not the I-539), and may begin working. You generally would not need to depart the United States to obtain the requested nonimmigrant status in this scenario.

Doing consular processing is a long drawn out process and will cost more with travel and visa interview wait times involved. It is not needed because USCIS has an official provision in effect to avoid this unnecessarily. Therefore the end to end process will likely look something like this:

Without RFE:

1. Week 1: LCA filing
2. Week 2: I-129 filing for H1B in premium processing
3. Week 3: Processing time
4. Week 4: H1B decision

With RFE:

1. Week 1: LCA filing
2. Week 2: I-129 filing for H1B in premium processing
3. Week 3: RFE issued
4. Week 4: RFE issued /RFE response
5. Week 5: H1B decision

This will give prospective employers a good idea of what to expect in terms of processing times.

There is also a recent promising development from the Dept. of State about a pilot for visa stamping. In near future (starting Dec '23 or Jan '24), the renewals will take place in USA and visa interviews would be waived for select candidates. This means that visa stamping in a foreign consulate may not be required for renewals, making it easier for US visa holders to travel outside of US and not have to worry about stamping on the way back.

Link:??https://www.state.gov/briefings-foreign-press-centers/2023-update-on-us-visa-processing-worldwide?

Transcript:?

We have a couple of other innovations that you’ve heard me maybe talk about before that I want to highlight for you that we’re doing in 2024.? One is domestic renewal of visas.? This is being run as a pilot starting next month and into the beginning of the calendar year, 2024.? What this means is that people who are living and working in the United States on a long-term work visa do not have to leave the United States to apply for their next visa or to renew their visa.? They would be able to send it to us here in Washington, have it renewed without leaving the country and sent back to them in their own passport.

This is a huge undertaking; we’re very excited about it.? We’re starting small with a pilot of 20,000 visas in December, January, February, and we look forward to opening that to more categories of workers living in the United States in the rest of 2024.? This is a very exciting program.? We did do it in the past; the last time we did it was about 20 years ago, and now we’re ready to restart that.

We’re also very focused on waiving visa interviews where we can, specifically for prior travelers.? So U.S. border policy has been this year to allow interviews to be waived for visa applicants who previously traveled to the United States, and we hope to continue that in the next year.?

Hope this article helps those in this unfortunate situation. Stay positive, have confidence on your skillset, background and experience. Feel free to repost and spread this information. Happy to answer any questions below or on DMs.

*Reference:

1. Options for Nonimmigrant Workers Following Termination of Employment _ USCIS - Document with highlights: https://tinyurl.com/optionsforniv, Link on USCIS website: https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/options-for-nonimmigrant-workers-following-termination-of-employment
2. Reference Screenshot from USCIS Twitter (X) Account - Document: https://tinyurl.com/uscistweet?, Link to the tweet:

**Reference: Attorney explaining this exact scenario:?