COVID-19 pandemic impacted each of us in one way or another, as well as many areas from healthcare systems to the global economy, but it especially resulted in a massive spike in unemployment.
H-1B workers have not been immune from this fallout. Meaning that for many foreign workers flying back to the home country following the loss of employment might not be a viable option for the foreseeable future.
Since it is still challenging to find another job for persons desiring to stay in the U.S., the second option that would allow a foreigner present in the U.S. on some nonimmigrant visa categories to remain in the United States for some time is applying for a change of status to B-2.
In this article, we will focus on how a worker having a specialty occupation (and bachelor’s degree or higher) with an employment-based immigration visa can change status. While you go through this article, you may come across some information that at first may confuse you. But, don’t stress out, you are not alone. A little professional guidance can help you save money and time, so be free to contact our law firm and let us put our skills to work for you.
How to Switch From H-1B to a B-2 Visa?
First of all, let’s clarify: Just because your H-1B visa has expired doesn’t mean you will be thrown out of the United States. You can stay in the country for a while under certain circumstances:
- While you are in the valid status for 60 days or
- Until the day your I-94 expires.
This will depend on the date that occurs first. Usually, this option is available for H-4 dependents as well.
We highly advise you not to wait for your visa to expire. Rather you can apply for a status change and get a B-2 visa. Once you apply and wait for the application to be processed, you can stay in the U.S., but you need to make sure you file it early enough and certainly before your current authorized stay expires.
For Mexican and Canadian citizens different entry requirements apply for a TN work visa. TN visa holders can live and work in the U.S. temporarily.
What Is B-2 Visa?
The B-2 is a visitor visa and nonimmigrant visa that allows a foreigner to enter the U.S. for pleasure or medical treatment. When foreigners want to obtain any visitor visas, they must first file the visa petition with the U.S. Consulate abroad with jurisdiction over the place of permanent residence and go through the visa interview with consular officers. The consular officer will question your background, your employment, and plans in the U.S. and will take your digital fingerprint scans. Also, be ready to provide a receipt for all fees and the confirmation page for DS-160.
After you get your visa stamp, the admission period into the U.S. usually is for up to six months. This period of time will be indicated on the Form I-94 issued at the port of entry by The Department of Homeland Security, Customs and Border Protection (CBP). When you enter the U.S. on a visitor visa, you can request an extension of visa status for six additional months.
When a foreigner enters the U.S. on the visa waiver program (certain countries allow it), it is impossible to extend the visitor visa status.
How long you will be able to stay will depend on the expiration date of the I-94 form, and not on your visa stamp. Remember that the date on the visa stamp is not relevant.
Extension of Visitor Visa
While you are in the U.S., you can apply for an extension of your visitor visa status with the U.S. Citizenship and Immigration Services (USCIS).
When USICS receives your application, they will examine factors such as:
- Your definite plan to depart the U.S. when the proposed extension period expires;
- Whether you have an intention of abandoning a residence abroad;
- That you submit the extension of stay application before your current authorized stay expired;
- That you have not committed any act which would make you ineligible for an extension;
- That you have provided proper evidence of financial support.
It is also important at what time you file your application.
For example, suppose you apply for an extension of your visitor status as soon as you arrive in the U.S. In that case, USICS might consider that you do not intend to return to your home country and that you have planned to extend your nonimmigrant status even before entering the U.S. (“fraudulent entry”).
Common Reasons for B-2 Visa Holder To Extend Status
Here are some of the most usual reasons for extending B-2 visa status which include:
- Continuing tourism activities.
- Social meetings with friends and relatives.
- Participating in social organizations and functions.
Change of Status
Changing status from one nonimmigrant visa category to B-2 status can be tricky.
Considering the rule that the employer files an H1B application, if you are an H-1B holder with specialized knowledge whose employment is terminated, you will have just a 10-day grace period to find another employer who is willing to file an H-1B petition for a status change to another nonimmigrant visa category so you can continue to perform services.
If you (or your prospective employer) timely and properly file the change of status application, you can buy some time and legally stay in the U.S. for a while.
If the USCIS denies your application for an extension of B-2 status and your Form I-94 has expired, you will have 30 days to depart the U.S. starting from the date of the notice letter of its decision.
What to Do If My Application is Denied?
If the U.S. Citizenship and Immigration Service USCIS denies your application for an extension of B-2 status and your Form I-94 has expired, the visa stamped on your passport will automatically be considered canceled.
If your application for an extension of B-2 status was denied, you should keep the following documents:
- The USCIS decision letter notifying you about the denial
- The receipt notice as evidence that the extension application was filed on time
- The boarding pass
- Passport stamp showing entry into another country after you left the U.S.
With these documents, you may reduce your overstay and increase your chances of getting any subsequent visa.
B2 Visa Applicants – Eligibility Requirements
The requirements to qualify for a B-2 visa are not affected by the COVID-19 crisis. You still must prove that you reside in another country and that you are planning on leaving the U.S. once the temporary stay period is over.
Requirements to Move to a B2 Visa
The B1 B2 visa covers a variety of reasons for travel to the U.S. You can travel on a B2 visa to the U. S. for:
- Visiting family
- Engaging in tourist activities or traveling for a vacation
- Receiving medical treatment
- Attending or taking part in events (including concerts or classes, but only if there wasn’t any payment or credit given to the attendee)
On the other side, you cannot use this visa to enter the U.S. for:
- Any professional performance before a paying audience
- Arrival as a crew member on a ship or aircraft work
- Long-term employment by a U.S. firm
- Working as foreign press, in any information media, in radio, film, print journalism, or other information media
- Permanent residence in the U.S.
On the other side, B1 visitor visa status can be extended for the continuation of consulting with business associates, participating in educational, scientific, professional or business conventions, seminars, and conferences, negotiating contracts and settling estates, etc.
Can I Apply For A Green Card As a B-2 Visa Holder?
A B1 B2 visa is a temporary visitor visa type which means it does not grant permanent resident status, nor you can apply for employment authorization. However, as a B-2 holder, you can apply for a green card. The maximum time you can be issued a B2 visa is 180 days and it allows you to have multiple entries into the U.S.
How To Apply To Get a B-2 Visa?
To get a B-2 visa, the main thing to do is to prove that the travel is temporary, and you can self-fund all costs of the trip and during your stay. Additionally, you must prove that you have no intention of remaining in the United States and abandoning a residence in a foreign country.
Required documents for B-2 Visa
To apply for a B-2 visa, you must prepare the following documents:
#A passport valid
Your passport needs to be valid for at least six months past the date of your return to your home country or country of residence.
Although you have a photo in your valid passport, you will need another one. Ensure that your recent digital photograph meets the requirements set by the U.S. Department of State — Bureau of Consular Affairs: in color, adequately sized, taken within the last six months in front of a plain white or off-white background, etc.
#Trips To the U.S.
You will need to prepare documentation of the past five previous trips to the U.S if this applies to you.
#Proof of Financial Funds
You will need to provide proof of funds to demonstrate that you can cover the entire cost of your trip to the U.S., including travel, accommodation, and living expenses during your stay.
#Ties To The Home Country
As you need to prove that you have no intention of abandoning your residence, your visa application must be supported with evidence of binding ties to your country of residence. This can be a job, property, or your family.
What to Do If Your I-94 Form Is Expired?
Previously we mentioned that the date of the visa stamp is not relevant, but that you need to pay attention to the date of your I-94. Some H-1B visa holders may not be so lucky, and their I-94 may have already expired when they find out they can apply for a change of status, meaning the grace period is also over.
But don’t worry, there are still some options. You can try applying for a nunc pro tunc (NPT) and request a B-2 status with a backdated I-94.
How An Immigration Attorney Can Help Me?
H1B work visa holders may find it challenging to demonstrate a residence abroad, as many of them have lived in the U.S. for an extended period. Similarly, it is pretty usual for an H-1B visa applicant to have a pending or approved immigrant petition (Form I-140) through a U.S. employer opposing the argument that the applicant intends to remain in the United States temporarily. Still, given the ongoing pandemic, some arguments can be made regarding why B-2 status is warranted under the circumstances. These are issues that should be discussed with an attorney before filing the change of status application.
Therefore, if you are ready to apply for a B-2 visa, contact the Herman Legal Group law firm by calling 1-216-696-6170, or by booking online. We are an award-winning immigration law firm, founded in 1995, and experienced in all areas of immigration: family, employment, investor, deportation defense, and citizenship. Call us today, and book your consultation with Richard Herman. Richard Herman is a nationally-known immigration lawyer with 28 years of experience acting as a national speaker, advocate, and author. He co-authored the acclaimed book, “Immigrant, Inc.”