For foreign workers, it might be challenging to find an overseas company to act as an H-1B sponsor when are not physically present in the U.S. This is why many prospective workers frequently inquire how they can change their non-immigrant status from B1/B2 to H-1B visa holder from within the U.S.
Let’s look at how you can apply for a change of status, form your B1/B2 visa status to H-1B and stay legally in the U.S.
What is B2 Visa?
The B-2 visa is a visitor visa. This non-immigrant visa is issued to a foreign national visiting the U.S. for pleasure for short period, usually from 3-6 months.
Of course, if your home country is in the Visa Waiver Program, you can travel to the U.S. and remain there without a visa for no more than 90 days. Otherwise, you need to qualify for B-2 visa status.
While both B1/B2 visas allow foreigners to stay in the U.S. for six months, their applications will be approved only if the visit is for a proper reason. While B1 applicants come to the U.S. to conduct business, B2 visa applicants can obtain this visa only if they are coming to the U.S. for the following purposes:
- Spend vacation
- Take a tour of the U.S.
- Visit friends or relatives
- Attend social events
- Receive medical treatment
- Take part in events related to sports or music, but not being paid or receive any form of payment for it
- Take courses, but not for credit
B2 Requirements
To obtain a B2 visa, there are several steps a person needs to complete and the required documents to prepare. Here is the list of what you need to have to apply for a B-2 visa:
File the application form DS-160. You can submit this form online.
Make sure you hold a valid passport for at least another six months from the intended date of departure from the US.
Attach the photo meeting photo requirements set by the U.S. Department of State.
Provide an email address to receive the application form confirmation page. You will need to print out this page before going to your interview.
Pay the fee for the B2 visa and keep the receipt.
Short Overview of H-1B Visa
The H-1B program applies to U.S. employers seeking to hire nonimmigrant workers in specialty occupations or as a fashion model of distinguished merit and ability.
To get the H-1B, a foreign worker in a specialty occupation needs to possess highly specialized knowledge and hold a bachelor’s degree or higher or its equivalent.
The U.S. immigration law protects U.S. workers from being adversely affected by the employment of nonimmigrant workers.
This is why the U.S. company must attest to the Department of Labor that they will pay wages to the prospective H-1B nonimmigrant worker that are equal to the actual salary paid to other similarly experienced workers with similar qualifications for the job in question or the prevailing wage for the occupation in the area of intended employment – whichever is greater.
H1B Visa Advantages
Among several advantages of the H-1B visa, relatively easy-to-meet requirements make it a good choice for working in the U.S. and filing for an extension for up to six years of authorized stay. Also, the H1B visa allows a beneficiary to be physically present in the U.S. in H-1B status for six years with the possibility to extend H1B status for up to three years and apply for a green card.
Also, your H-1B status makes your spouse and unmarried children under 21 years of age may be eligible to seek admission in the H-4 nonimmigrant classification.
H1B Visa Eligibility Requirements
To qualify for the H1B, the beneficiary has to have:
- A job offer from a U.S. employer for a specialty position
- At least a bachelor’s degree required for your position
Keep in mind that you need to prove that you and your employer have an employer-employee relationship and that you are not allowed to self-petition.
Change Of Status
As you could learn in the previous section, an immigrant can file the change of status application from B-2 to H-1B as long as you’re in valid status, but certain obstacles may arise. Here is what you can expect if you want to request a change of status and get the new non immigrant status and how to deal with it.
H-1b Visa Availability
If an H-1B visa is unavailable, you will likely have to wait for an employer to file the petition on your behalf until April of the same year during the H-1B lottery, usually beginning on April 1st.
If you have previously been on H-1B status or your employer who filed the petition belongs to a cap-exempt, this issue will not apply to your case.
Maintain the Non-Immigrant Status
If your H-1B petition is selected in the lottery and approved, your H-1B status will begin on October 1st of the same year. This means that you have to maintain status from initially entering the U.S. until October 1st, and then you can apply for a change of status from B-2 to H-1B.
It also means that you will not be able to start working as an H-1B employee until October 1st and after your U.S. employer obtains a Labor Condition Application LCA on your behalf.
To maintain your status, you need to apply for the change of status before your B-2 expires as per the I-94.
If you cannot maintain your status until October 1st, when the H-1B becomes active, you need to file an H-1B petition with consular processing instead.
In other words, while you are in the U.S. on a B2 visa, you need to find a job and an employer who is willing to employ you on an H1B visa. Once you have a job offer, you need to leave the country while your B2 status is still valid before its termination.
Then, the sponsoring employer will file the petition during the H-1B lottery process while you are abroad and request the allowance for you to re-enter the country later.
Eventually, once your petition is selected and approved in the lottery, you need to visit the US embassy in your home country and go for an H-1B visa stamping through consular processing before coming back to the United States on H-1B status.
H-1B lottery Selection
To file an H1B petition, your prospective employer needs to make four attestations:
- Your employer will pay the prevailing wage for your position according to your geographic area.
- Your employment will not adversely affect the working conditions of other employees.
- There is no strike or lockout taking place at the place of work.
- The employer notified current employees about the intent to hire you.
The lottery can be quite an obstacle to changing your status from B-1/B-2 to H-1B because there are only 85,000 total positions (20,000 for those with a master’s degree or higher from a U.S. institution of higher education).
The only thing that can impact your chances is your advanced degree. The USCIS will first pick 20,000 from the applications subject to the master cap, and petitions of the applicants that are not selected will be re-entered into the lottery and added to the regular subject cap of 65,000.
After your petition is selected, the USCIS will process it to determine if you and your employer meet the requirements for the H-1B visa. If you get the approval, your status will change on October 1st.
When To Use Premium Processing?
If you or your employer want to shorten your petition’s processing time, you can use an optional USCIS service called premium processing. USCIS will process the I-129 and I-140 petitions with premium processing within 15 calendar days, making the H-1B a premium candidate.
Since the H-1B program has strict dates for filing and starting work, premium processing might not be the right path to get you from B-2 to H-1B status.
But, if you still want to expedite the processing time, contact our law firm for further information so our immigration experts can assess your case and give you advice on what is your best option to get the H1B visa.
How An Immigration Attorney Can Help You?
If you decide to change status from one visa category to another, you may face specific obstacles. Moreover, considering how U.S. immigration law treats those who commit who violate the nonimmigrant status if your intentions to migrate to the U.S. look suspicious, the wise choice is to speak to an immigration attorney before any wrong step is made and the chance to work in the U.S. or eventually get the green card is lost. Let us help you take the stress and anxiety over the immigration process. The Herman Legal Group law firm, founded in 1995, can help you navigate the rough waters of U.S. immigration law. Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office. We respect your valuable time and resources, and we will not conduct a one-hour consultation unless we believe we can provide critical information and hopefully a path to immigration success.
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