Does a change of status from H-1B to B2 (due to lay off) adversely impact a subsequent H-1B application with a new employer?

Asked 7 months ago - New York, NY

I was laid off in October 2013. I immediately applied for a change of status to B2 to give me time to find a new job and to stay in the US legally. I found a new job and the employer filed for an H-1B petition under premium processing this week. Meanwhile, my I-539 application had still not been adjudicated. I noticed online today that my I-539 B2 change of status application has now changed from "initial review" to "requesting additional evidence". I noticed the update to my I-539 B2 change of status application just one day after my employer filed my new H-1B petition. I am wondering if the request for additional evidence on the I-539 B2 change of status application (I haven't received the formal letter yet) will impact my H-1B petition or if both applications are handled independently?

Additional information

From speaking to attorneys, I understand that change of status to B2 is commonly used as a bridge to allow enough time to leave the country or find new employment after a layoff. I am not sure the attorneys who responded to my question understood the question. I was wondering if there are any others who can share their insight?

Attorney answers (4)

  1. Carl Michael Shusterman

    Pro

    Contributor Level 20

    12

    Lawyers agree

    Answered . You can use the B-2 as a bridge between jobs. The problem is that the change of status application will take months to be adjudicated. Assuming that you find another H-1B employer during the waiting period or if your change of status to B-2 is denied, you will have to go abroad to get an H-1B visa.

    Mr. Shusterman's (former INS Trial Attorney, 1976-82) response to your question is general in nature, as not all... more
  2. Alexander Joseph Segal

    Contributor Level 20

    3

    Lawyers agree

    Answered . Yes. You will be accused on lying if you change to B2, promise to leave at the end of the authorized stay and then your new employer will seek a change of status for you from B2 to H1B again. This would be called playing games and misusing the visitor's visa. You do not want to do that, I am sure.

    The information contained in this answer is provided for informational purposes only, and should not be construed... more
  3. Giacomo Jacques Behar

    Pro

    Contributor Level 20

    2

    Lawyers agree

    1

    Answered . Yes! A denial of your COS to B2 will render you unable to change status to H-1B in the US. Make sure to immediately hire the best immigration attorney money can buy to deal with this RFE forthwith. You will otherwise be compelled to depart and seek consular processing of your H-1B if and when approved by USCIS. Depending where that consulate is, you could be slapped with "administrative processing" the euphemism for security name checks which can easily ground you at home for 7-8 months (think Hindustan or better yet, Pakistan). By the time the dust finally settles you "employer" might want you no more, don't you think?

    Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that... more
  4. Akhilesh Krishna

    Contributor Level 12

    Answered . It would be best to hire a competent immigration attorney to respond to the RFE. A denial of your COS would potentially result into an overstay, as you are technically not in the H1B status once you lost your job or stopped getting paid. If your H1B is approved under premium processing, USCIS could either grant you a H1B transfer or also process it as a Consulate processing , in which case you would have to go back to your home country to receive the H1B visa. However if the H1B is denied, it would be best to leave the country rather than waiting for the B2 approval. Since it is filed in premium processing, you would know in 15 days from filing date as to the status of your new H1B filing, unless ofcourse if they issue an RFE in that case also.

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

29,209 answers this week

3,114 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

29,209 answers this week

3,114 attorneys answering