As U.S. immigration policies continue to shift, it is crucial for nonimmigrant workers to understand their options and the immigration process after losing employment. H-1B visa holders who face job termination often wonder whether they can transition to a B-2 visitor visa, F-1 student visa, or H-4 dependent visa while searching for a new job. This article provides a detailed guide on navigating these transitions and how to return to H-1B status.
Understanding Change of Status Options
When an H-1B worker is terminated, they typically receive a 60-day grace period to either find a new employer or change their immigration status. Filing Form I-539 allows individuals to apply for a change of status to:
- B-2 (Visitor Visa): Allows the individual to stay temporarily while seeking new employment.
- F-1 (Student Visa): Enables enrollment in an academic program.
- H-4 (Dependent Visa): Available to spouses or children of H-1B holders.
Filing Form I-539 also allows individuals to apply for a change of status or extend status to remain in the U.S. legally while seeking new opportunities.
Background: Filing Change of Status to B-2, F-1, or H-4
Filing a change of status to B-2, F-1, or H-4 is a common option for H-1B visa holders who are facing job loss or termination. This process allows individuals to maintain lawful status in the U.S. while they search for a new employer. By filing Form I-539, Application to Extend/Change Nonimmigrant Status, H-1B holders can transition to a visitor, student, or dependent status. This ensures they remain in compliance with U.S. immigration laws while exploring new employment opportunities. It’s important to note that the change of status application must be filed before the expiration of the 60-day grace period to avoid falling out of status.
Key Considerations When Changing Status
- The applicant must file before the 60-day grace period ends to maintain legal status.
- USCIS processing times vary, so planning ahead is essential.
- H-1B holders cannot work while on B-2 or H-4 status unless they secure a new employment-based visa.
- F-1 applicants must ensure their school issues an I-20 form before applying for a status change.
Understanding the Maximum 60-Day Grace Period for Nonimmigrant Workers
The 60-day grace period is a crucial provision for workers in certain nonimmigrant classifications (E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN) and their dependents. It provides a temporary period during which these individuals can maintain their status following the termination of their employment. It’s important to note that the change of status application must be filed before the expiration date of the 60-day grace period to avoid falling out of status.
What is the 60-Day Grace Period?
The 60-day grace period is a provision that allows certain nonimmigrant visa holders, including H-1B visa holders, to remain in the U.S. for up to 60 consecutive days after their employment ends. During this time, individuals are not authorized to work but can:
- Seek new employment opportunities.
- Apply for a change of status.
- Make arrangements for departure from the U.S.
It’s important to note that this grace period is not extendable. Once it expires, individuals must have secured a new visa status or depart the U.S. to avoid potential legal consequences.
Key Benefits of the 60-Day Grace Period
- Allows Nonimmigrant Workers to Maintain Status: During this period, workers are considered to be in lawful status, enabling them to seek new employment, change their status, or prepare to leave the U.S. legally.
- Employment Authorization for Dependents: Spouses of eligible workers who hold valid Employment Authorization Documents (EADs) may continue working during this time.
- Seamless Transition for H-1B Workers: H-1B workers can begin employment with a new employer immediately after their new petition is received by USCIS, without waiting for approval.
Eligibility for the 60-Day Grace Period
The grace period applies if:
- The worker’s employment ends involuntarily or voluntarily.
- The worker remains within the authorized validity period of their current visa.
- The worker does not engage in unauthorized employment during the grace period.
Applying for the 60-Day Grace Period
- USCIS determines the application of the grace period when adjudicating extension of stay, change of status, or employment authorization applications.
- Employers or applicants should mention in a cover letter their request for USCIS to favorably exercise discretion in granting the grace period.
Understanding Status and Work Authorization During the Grace Period
- Nonimmigrant Status: Workers are considered to be in lawful status during the grace period.
- Employment Restriction: Employment is prohibited during the grace period unless otherwise authorized.
- Rehiring by the Same Employer: If the original employer rehires the worker in the same position, no additional petition is required.
- Travel Restrictions: Departing the U.S. during the grace period terminates it, and workers must seek a valid visa to re-enter.
Options During the 60-Day Grace Period
Workers can take various actions to maintain lawful status:
1. Finding New Employment
- New employers must file a non-frivolous petition before the expiration of the grace period.
- H-1B workers can start working immediately upon USCIS receipt of the new petition.
2. Changing Nonimmigrant Status
Workers may change to:
- Dependent Status (H-4, L-2, etc.): Certain dependent statuses allow for employment authorization.
- Student Status (F-1): Some F-1 students may engage in limited employment.
- Visitor Status (B-1/B-2): Workers must ensure they do not engage in unauthorized employment.
- A Different Employment-Based Status: This requires a new petition from an employer.
3. Applying for Adjustment of Status
- Workers eligible for a Green Card (permanent residency) may file for adjustment of status.
- Certain workers may qualify for a Compelling Circumstances Employment Authorization Document (EAD).
4. Leave the U.S.
Key Considerations
- Work Authorization: Individuals are not permitted to work during the 60-day grace period or while on B-2 status. Unauthorized employment can lead to serious legal consequences.
- Travel Restrictions: Traveling outside the U.S. during the 60-day grace period or while a change of status application is pending may affect re-entry. It’s advisable to consult with an immigration attorney before making travel plans.
- Overstaying Implications: Remaining in the U.S. beyond the authorized period without an approved change of status can lead to removal proceedings and impact future immigration benefits.
Effect of Employment Termination While Abroad
If a worker is terminated while outside the U.S. and the grace period ends before they can return, they must seek a valid status for reentry.
Portability of Employer Petitions
A timely-filed, non-frivolous change of status petition:
- Stops unlawful presence accrual while pending.
- Allows a seamless transition to a new employer.
- Does not automatically provide work authorization unless under H-1B portability rules.
Premium Processing Option
Workers can expedite their applications using Premium Processing, which guarantees adjudication within 15 business days for an additional fee.
Transitioning Between H-1B and Other Non-Immigrant Status
The United States attracts professionals worldwide through various visa programs, notably the H-1B visa, which permits skilled workers to temporarily work for sponsoring employers. However, unforeseen circumstances, such as job loss, may necessitate transitions between different visa statuses. This guide provides a comprehensive overview of navigating the 60-day grace period, focusing on transitioning from H-1B to B-2 status and back to H-1B.
H1B Grace Period
H1B visa holders who experience job termination are granted a 60-day grace period to take one of the following actions:
- Find a new employer and initiate an H1B transfer.
- Change status to another visa category.
- Leave the U.S. before the grace period expires.
Important Considerations:
- You cannot work during the 60-day grace period.
- The grace period is not extendable.
- If you do not secure another visa or employer sponsorship before the 60 days expire, you risk accruing unlawful presence.
Change of Status Options
If securing new H1B sponsorship is not feasible, an alternative option is to change your visa status. Popular change-of-status options include:
H1B to B1/B2 (Visitor Visa)
Pros:
- Easy to apply without employer sponsorship.
- No tuition or enrollment requirements.
- Provides legal stay while seeking new employment opportunities.
- Allows entry for valid purposes such as tourism, visiting family, or seeking medical treatment.
Cons:
- No employment authorization during or after transition.
- Processing times are unpredictable (3-8 months).
- Once approved, the granted stay period could be less than six months.
Application Process:
- File Form I-539 with supporting documents:
- Financial proof for self-sufficiency.
- Letter explaining the purpose of the stay.
- Proof of ties to home country.
- Copies of passport and I-94.
- Wait for USCIS decision.
- If approved, remain in the U.S. on B1/B2 status while searching for a new employer.
- Once employment is secured, apply for H1B change of status.
H1B to F1 (Student Visa)
Pros:
- Enables full-time study at a SEVP-certified university.
- Eligibility for Curricular Practical Training (CPT) from Day 1 in certain universities.
- Allows Optional Practical Training (OPT) post-graduation, with an extension for STEM fields (up to 36 months).
Cons:
- Requires tuition payments.
- Enrollment in an accredited university is mandatory.
- Study obligations alongside work authorization (CPT) can be demanding.
Application Process:
- Gain admission to a SEVP-certified university.
- Obtain Form I-20 from the institution.
- Pay the SEVIS fee ($350) on USCIS official site.
- File Form I-539 (Change of Status) with required documents.
- Consider premium processing for faster results ($1,965).
Processing Time: 3-8 months (Standard) / 30 days (Premium Processing)
Choosing the Right Academic Program
When transitioning to F-1 status to enroll in a Day 1 CPT program, international students should consider several key factors. Accreditation is essential for ensuring the quality of education, and students should choose a program that aligns with their career goals to maximize the benefits of their academic and professional journey. Location and costs are also crucial factors to consider when selecting a university and Day 1 CPT program. Ensuring the program is accredited by a recognized accrediting agency, such as the Higher Learning Commission (HLC), is vital for international students. This not only guarantees a high standard of education but also ensures that the degree will be recognized by employers and other educational institutions.
H1B to H4 (Dependent Visa)
Pros:
- Eligible for work authorization if the primary H1B holder has an approved immigrant petition (Form I-140).
- No requirement to attend school or job search.
Cons:
- Dependence on the primary H1B visa holder’s status.
- No work authorization if the primary H1B holder has not filed for an I-140.
Requirements to Move to a H-4 Visa
To move to an H-4 visa, the individual must meet certain requirements. The H-4 visa is a nonimmigrant visa that allows the spouse or unmarried children under the age of 21 of an H-1B visa holder to enter the United States. To be eligible for an H-4 visa, the individual must be the spouse or unmarried child of an H-1B visa holder, and the H-1B visa holder must have a valid H-1B visa. Additionally, the individual must demonstrate that they will not engage in unauthorized employment while in the United States. This visa category provides an opportunity for family members to stay together while the primary H-1B holder works in the U.S.
H1B to O1 / L1 (Extraordinary Ability / Intracompany Transfer Visas)
Pros:
- Work authorization allowed.
Cons:
- Employer sponsorship required.
- Usually not an option for laid-off workers.
Comparison Table: Change of Status Options
|
Status Change |
Work Authorization |
Processing Time |
Key Restrictions |
|
H1B to F1 |
Allowed via CPT/OPT | 3-8 months (standard), 30 days (premium) | Tuition payments required; must remain enrolled in a university |
|
H1B to B1/B2 |
Not allowed | 3-8 months | No work authorization; duration granted may be less than six months |
|
H1B to H4 |
Only if primary H1B holder has approved I-140 | 3-8 months | Tied to the status of the primary H1B holder |
|
H1B to O1/L1 |
Allowed | Varies | Requires employer sponsorship |
Understanding the Transition from H-1B to B-1/B-2 Visa
For foreign workers in the U.S. on an H-1B visa, circumstances can change unexpectedly. Since your legal status is tied to your employer, job loss or an expiring visa can create uncertainty. If you’re looking to stay in the U.S. temporarily after your H-1B status ends, transitioning to a B-1/B-2 travel visa might be a suitable option. Understanding the various nonimmigrant visa categories can help in making informed decisions about maintaining lawful status during transitions.
Reasons to Switch from H-1B to a Travel Visa
Here are some common situations where an H-1B visa holder might consider changing to a B-1/B-2 visa:
- Job Loss: Losing a job means your H-1B status may become invalid, and finding a new employer immediately can be challenging. A travel visa allows you to remain in the U.S. while searching for a new job or planning your next steps.
- Tourism or Family Visit: If you wish to stay in the U.S. for leisure, to visit family, or simply travel, switching to a B-1/B-2 visa allows for temporary residency without work authorization.
- Expiring H-1B Visa: If your H-1B visa is nearing expiration and you haven’t secured an extension or a new visa, applying for a B-1/B-2 visa can provide additional time to explore future options.
- Career Break or Personal Reasons: Some individuals may want to take a break from work due to personal reasons or to explore alternative career opportunities in a different setting.
Steps to Change Status from H-1B to B-2
- File Form I-539: Submit the Application to Extend/Change Nonimmigrant Status to the U.S. Citizenship and Immigration Services (USCIS).
- Await USCIS Decision: Processing times can vary, and it’s essential to maintain lawful status during this period.
It’s crucial to understand that while the application is pending, the individual must refrain from unauthorized employment. Engaging in work activities without proper authorization can lead to violations of immigration status.
Steps to Transition from H1B to B1/B2 and Back to H1B
Step 1: File I-539 for Change of Status to B1/B2
- Prepare Form I-539 – Complete and submit Form I-539 through the USCIS website. Click here to access Form I-539.
- Pay Filing Fees – The application fee for Form I-539 is $470,
- Submit Form I-539 online with supporting documents.
- Provide Supporting Documents:
- Financial Evidence: Proof of funds to cover your stay in the U.S.
- Letter Explaining the Request: Detailing the reasons for the change of status.
- Proof of Ties to Home Country: Demonstrating the intention to return after the stay.
- A copy of your current Form I-94 (Arrival/Departure Record)
- Proof of financial ability to support yourself
- A letter explaining the reason for your status change
- Passport copies
- Previous H-1B approval notices (Form I-797)
📌 Important: You must apply for a change of status before your H-1B visa expires to avoid falling out of status.
Step 2: Await USCIS Processing
Processing can take 3-6 months, and outcomes include:
- Approval (legal stay granted for a specific period).
- Request for Evidence (RFE) (additional documents required).
- Denial (applicant must leave the U.S.).
- Check USCIS processing times here.
Step 3: Find Employment and Change Back to H1B
- Secure a new employer willing to file an H1B petition.
- Employer submits Form I-129 for change of status.
- Upon approval, start working under the new H1B status.
Transitioning Back to H-1B Status: Filing an H-1B Petition While a Change of Status Is Pending
If an individual has filed a change of status to B-2, F-1, or H-4 and later finds a new employer willing to sponsor them, they can file an H-1B petition while the change of status is pending. USCIS has specifically stated that when a Form I-129 petition for H-1B is filed with a request for premium processing, they will generally process the pending I-539 (B-2, F-1, or H-4) together with the I-129 petition. This means there is no delay in adjudicating the H-1B petition due to the pending change of status application. This concurrent processing allows for a seamless transition back to H-1B status, enabling the individual to resume work without unnecessary delays.
Transitioning Back to H-1B Status: Filing an H-1B Petition While a Change of Status Is Pending
Even if an individual has filed a change of status to B-2, F-1, or H-4, a new employer can still file an H-1B petition on their behalf.
If, during the B-2 status or while the change of status application is pending, an individual secures a new job offer from an employer willing to sponsor an H-1B visa, they can apply to change their status back to H-1B.
How It Works:
- The new employer submits a Form I-129 for an H-1B petition.
- If filed with premium processing, USCIS generally processes the pending I-539 (change of status application) together with the I-129.
- Concurrent Processing: USCIS will generally process the pending I-539 application (change to B-2) together with the new I-129 petition, allowing for a seamless transition back to H-1B status.
- Once the H-1B petition is approved, the individual’s status automatically switches to H-1B, making the pending change of status irrelevant.
- This eliminates the need to leave the U.S. for visa stamping, reducing delays and re-entry risks.
Advantages of This Process:
✔ Maintains lawful status while seeking new employment.
✔ Avoids the need to exit and re-enter the U.S.
✔ Speeds up the transition back to work through premium processing.
✔ Provides a safety net while job searching.
It’s important to note that until the H-1B petition is approved, the individual is not authorized to commence employment. Starting work before receiving approval can result in violations of immigration regulations.
March 2023 USCIS Policy Update
In response to increased layoffs in the tech industry, USCIS issued new guidance in March 2023, clarifying that individuals with pending B-2, F-1, or H-4 applications can still switch back to H-1B upon securing new employment.
Key Takeaways from the Policy Change:
- Employers can file an H-1B petition even if a worker has a pending I-539.
- USCIS will process both applications concurrently, reducing wait times.
- This policy applies to both H-4 and F-1 applicants, allowing smooth transitions.
- Workers do not need to exit the U.S. to regain H-1B status.
Practical Considerations for Employers and Employees
For Employers:
- This policy enables rehiring foreign talent who had to change status due to layoffs.
- Using premium processing ensures a quick return to work for H-1B employees.
- Avoids the costs and delays of sending workers abroad for visa stamping.
For Employees:
- It is crucial to file for a change of status before the grace period expires.
- Once an H-1B petition is approved, previous status applications become irrelevant.
- Premium processing offers a faster resolution and reduces employment gaps.
Future Implications of the Policy
The March 2023 policy update underscores USCIS’s commitment to adaptability in a shifting job market. By enabling smooth transitions between H-1B, B-2, F-1, and H-4 statuses, the policy benefits:
- Tech and engineering sectors with high numbers of foreign workers.
- Employers looking to quickly rehire top talent.
- Employees seeking job stability and legal security.
This change provides greater flexibility in navigating employment transitions while ensuring compliance with immigration laws.
Understanding the Difference Between Immigration Status and Visa Status
It is essential to understand the difference between immigration status and visa status. Immigration status refers to the individual’s status in the United States, such as H-1B, B-2, or F-1. Visa status, on the other hand, refers to the individual’s visa, which is a document that allows them to enter the United States. An individual’s immigration status can change while their visa status remains the same. For example, an individual may have a valid H-1B visa but have changed their immigration status to B-2. Understanding this distinction is crucial for navigating the complexities of U.S. immigration laws and ensuring compliance with all regulations.
FAQs on Filing Form I-539 After Losing an H-1B Job
Losing an H-1B job can be a stressful experience, especially for non-immigrant workers who must maintain legal status in the U.S. To stay compliant with immigration laws, many choose to file Form I-539, Application to Extend/Change Nonimmigrant Status, to transition to B1/B2 (tourist/business visitor), F-1 (student), or H-4 (dependent of an H-1B holder). Here’s a detailed FAQ to help navigate the process.
General FAQs on I-539 After H-1B Job Loss
1. What is Form I-539?
Form I-539 is used by non-immigrants to apply for an extension of stay or a change of status (COS) while in the U.S. Individuals who have lost their H-1B jobs can use it to transition to another non-immigrant status.
2. How soon must I file Form I-539 after my H-1B job loss?
- You typically have a 60-day grace period from the last day of employment to find a new H-1B employer or file for a change of status (COS).
- If you file within this grace period, you remain in the U.S. legally while USCIS processes your request.
3. Can I stay in the U.S. while my I-539 is pending?
Yes, as long as you file before your I-94 expires or before the end of the grace period, you can remain in the U.S. while awaiting a decision. However, you cannot work unless you obtain a new work-authorized status.
4. What happens if my I-539 is denied?
- If denied, you must leave the U.S. immediately to avoid accruing unlawful presence, which could impact future visa applications.
- You may also try consular processing to obtain a new visa from outside the U.S.
5. Can I travel outside the U.S. while my I-539 is pending?
No. Departing the U.S. while Form I-539 is pending is considered an abandonment of your change of status request. If you leave, you must apply for a visa from abroad.
6. Can I expedite my I-539 request?
USCIS does not generally offer premium processing for I-539 applications. Expedited processing is only granted under specific circumstances, such as humanitarian reasons.
FAQs on Changing Status to B1/B2 (Visitor Visa)
7. Can I change to a B1/B2 visa while searching for a new H-1B job?
Yes, many individuals file for B1/B2 as a bridge status while looking for a new employer. However:
- You cannot work on a B1/B2 visa.
- If you find a new H-1B employer, they must file a change of status petition before your B1/B2 status is approved.
8. How long can I stay in the U.S. on B1/B2 status?
A B1/B2 visa typically grants up to 6 months of stay. If needed, you can apply for an extension before it expires.
9. Can I search for jobs while on a B1/B2 visa?
Yes, but you cannot engage in employment or perform any paid work. If you secure a job, your employer must file a COS back to H-1B.
10. Do I need to prove financial stability when applying for B1/B2?
Yes, USCIS may require proof that you have sufficient financial means to support yourself without working.
11. Can I switch to another status from B1/B2 later?
Yes, you can file another I-539 to change status to H-1B (if you find an employer) or to F-1 (if enrolling in school).
FAQs on Changing Status to F-1 (Student Visa)
12. Can I change from H-1B to F-1 if I want to study in the U.S.?
Yes, you can apply for a change of status to F-1, but you must:
- Obtain an I-20 from a SEVP-approved school.
- Provide proof of sufficient funds to cover tuition and living expenses.
- Maintain status until your F-1 is approved.
13. What happens if my H-1B status expires before my F-1 is approved?
- You may need to apply for a B2 visa as a bridge to maintain status.
- USCIS may issue a Request for Evidence (RFE) if there is a gap between your statuses.
14. Can I start studying while my I-539 for F-1 is pending?
No. You must wait until your F-1 status is approved before beginning classes.
15. Can I work on OPT/CPT if I switch from H-1B to F-1?
- CPT (Curricular Practical Training): Available if your degree program includes practical training.
- OPT (Optional Practical Training): You must complete one full academic year before applying.
16. Do I need to leave the U.S. for consular processing to get an F-1 visa?
Not necessarily. If your I-539 is approved, you can stay. However, if you travel outside the U.S., you’ll need to apply for an F-1 visa stamp at a U.S. consulate.
FAQs on Changing Status to H-4 (Dependent of an H-1B Holder)
17. Who can apply for an H-4 visa?
If your spouse or parent has an active H-1B visa, you can file Form I-539 to change your status to H-4.
18. Can I work on an H-4 visa?
- H-4 visa holders cannot work unless they obtain an Employment Authorization Document (EAD).
- Only H-4 spouses of H-1B holders with an approved I-140 (green card petition) are eligible for an EAD.
19. What documents do I need to change to H-4 status?
- Marriage certificate (for spouses) or birth certificate (for children)
- H-1B holder’s approval notice (I-797)
- Recent pay stubs of the H-1B holder (to prove they are maintaining status)
20. Can I switch from H-4 back to H-1B later?
Yes, but an employer must sponsor a new H-1B petition. If subject to the cap, you may have to enter the H-1B lottery unless you have an unused cap-exempt H-1B.
21. What happens if my spouse’s H-1B expires while my H-4 is pending?
Your H-4 status depends on the validity of the H-1B holder’s status. If their H-1B is denied or expires, your H-4 could also be affected.
Miscellaneous FAQs
22. Can I file I-539 online?
- Yes, Form I-539 can be filed online for certain categories.
- Paper filing is still required in some cases (e.g., if applying with dependents).
23. Can my dependents apply with me on the same I-539 form?
Yes, you can include spouse and children as co-applicants when changing status.
24. How long does USCIS take to process I-539?
Processing times vary, typically 2–12 months depending on the service center and workload.
25. What should I do if my I-94 expires before my I-539 is approved?
If your I-539 was filed before the I-94 expired, you can stay in the U.S. under “authorized stay” until USCIS makes a decision.
1. Can I work in the U.S. while my change of status is pending?
- If your H-1B visa is still valid, you may continue working. However, once your status changes to B-1/B-2, all employment must stop immediately.
2. What happens if my H-1B visa expires before my change of status is approved?
- If your visa expires while your Form I-539 is pending, you may stay in the U.S. under the pending application status. However, leaving the country before a decision is made may result in additional complications.
3. Can I search for a new job while on a B-1/B-2 visa?
- Yes, but you cannot begin working until you obtain a new H-1B visa. You would need to leave the U.S., secure a job offer, and apply for a new H-1B visa through consular processing.
4. What if my change of status request is denied?
- If USCIS denies your change of status request, you may need to leave the U.S. immediately or reapply with additional supporting documentation.
Can I expedite my change of status petition?
Yes, USCIS may expedite applications on a case-by-case basis if criteria are met. However, premium processing is generally required. View USCIS expedite criteria
Can I job hunt on a B-1/B-2 visa?
Yes, job searching and interviews are permitted. However, employment cannot begin until a change of status is approved.
What happens if my new employer’s petition is denied?
- You cannot appeal a denied change of status or extension of stay.
- Employers can appeal denied petitions via Form I-290B, Notice of Appeal or Motion. View Appeal Process
What if I exceed the 60-day period without a new status?
- You begin accruing unlawful presence, which may lead to bars on reentry.
- Departing the U.S. before accruing unlawful presence prevents long-term immigration consequences.
Conclusion
Navigating the transition between H-1B and B-2, F-1 or H-4 statuses within the 60-day grace period requires careful planning and adherence to immigration laws. Understanding the processes and associated timelines is crucial for maintaining lawful status in the U.S. Consulting with an experienced immigration attorney can provide personalized guidance tailored to individual circumstances, ensuring compliance and facilitating a smooth transition.
