Navigating Visa Challenges: Should Laid-Off H-1B Workers Switch to a Tourist Visa?

With massive layoffs in the tech industry, many H-1B workers find themselves in uncharted waters. Wondering whether it makes sense for such a skilled worker on an H-1B visa to convert to a U.S. tourist visa (B-2)? Some H-1B visa holders are contemplating converting from H-1B to B-2 and re-entering the U.S. when they find a new job to switch to H-1B or another work visa. While this idea of using a tourist visa may appear to be a good option, let’s carefully analyze how this conversion process works and the advantages and disadvantages of this strategy.

What is H-1B Visa?

The H-1B visa is a non-immigrant visa for temporary employment which allows U.S. employers to bring foreign workers to the U.S. and engage in specialty occupations of a highly skilled nature which generally require specialized knowledge or advanced degrees. H-1B visa is mostly used by workers in information technology, engineering and other scientific or technical fields. Upon job loss, a worker has 60 consecutive days to find a new H-1B visa employer-sponsor. If a worker fails to obtain a new employment status within 60 days, he/she is considered out of status and liable for deportation.

B-2 Tourist Visa – A Quick Look

B-2 visa is also a non-immigrant visa granted to persons entering the United States for a temporary visit of pleasure, vacation, or relatives or friends. A B-2 visa holder can stay in the U.S. for a period as long as six months (in contrast to 60 60-day grace period on an H-1B visa). Hence, some H-1B visa holders who have lost their jobs are opting for B-2 visa conversion to gain additional time to look for employment.

How H-1B to B-2 Conversion Works?

To convert an H-1B visa to a B-2, a person needs to submit Form I-539, Application to Extend/Change Nonimmigrant Status, to the U.S. Citizenship and Immigration Services (USCIS). The H-1B to B-2 change of status application must be submitted before the end of the 60 days. However, one should keep in mind that B-2 visa processing can take several months, and an applicant is not allowed to work during this period.

 Advantages to Consider When Switching to a B-2 Visa

There are several advantages to switching to a B-2 visa, such as:

• Extended Time to Find Employment: The biggest advantage is that you get more time to find a new job, as a B-2 visa holder can stay in the U.S. for up to six months looking for a new job.

• Legal Stay in the U.S.: It provides a legal way to stay in the U.S. while job hunting that does not involve the complications and expenses of international travel.

• Flexibility: Remaining close to your professional network and potential employers can provide you with flexibility and peace of mind.

Challenges/Things to Consider

While the B-2 visa can provide you with some advantages as you explore what to do next, there are also several things to consider and some potential challenges:

• Prohibition on Employment: Employment is not allowed under a B-2 visa. There are potentially severe immigration consequences if you are found working in the U.S. while on a B-2 visa

• Processing Times Can Be Unpredictable: The processing time for a B-2 visa can be unpredictable and if your application is denied, you potentially must leave the U.S. immediately.

• Return to H-1B Status May Be Difficult: Returning to H-1B status from a B-2 visa will require a new petition filed by your prospective employers, which will need to be approved by USCIS. The process can be time-consuming and subject to the H-1B cap.

Legal and Strategic Advice

Legal experts caution that while in some situations, a B-2 visa as a temporary measure could be appropriate, it should be approached with caution. Consulting with an experienced immigration attorney is particularly important to navigate the complexities and to be sure that you are doing everything according to the law. These are some tips:

• File on Time: Ensure that you file the B-2 visa application on time, that is, within the 60-day grace period, to avoid falling out of status.

• Document Everything: Maintain detailed documentation of your job search and any communication that you have had with potential employers.

• Plan for the Long Term: It is important to think about what a longer-term strategy might be. This includes considering other visa options that might be more stable or fixate directly on what you need. 

 Options Instead of Getting a B-2 Visa

While it is possible to switch to a B-2 visa, other options could be a better fit depending on your situation:

1. O-1 Visa: The O-1 visa can be a good choice for people who have extraordinary abilities or achievements.

2. L-1 Visa: If you work for a multinational company that has an office in the US, you might be able to transfer to that office using an L-1 visa.

3. Student Visas (F-1/M-1): Another option is to pursue higher education and further develop your education in the US. This can be a strategic move that lets you continue to stay in the US, learn more, and also build your skills and credentials.

Considerations for Changing US Immigration Policy

US immigration policy is always changing and is influenced by political and economic factors. Overall, recent trends show stricter rules for visas and more reasons for immigration officials to scrutinize applications. It is important to be aware of changes in the law and policy and how those changes may affect what you can and cannot do when switching between visas.

Conclusion: Weighing Your Options

For those in this position, switching from an H-1B visa to a B-2 visa is an important decision that should come after considering all of the significant factors. The B-2 visa provides some relief and a bit more time to look for work, though the risks and restrictions on the B-2 visa are important to consider. Speaking with an immigration attorney or immigration professional and finding out about all of the visa options available to you would be a good step so that you can make an informed decision that also takes into account your career goals and personal circumstances.

Given the uncertainty in the US migration environment, it is important to be proactive and to try to understand the process for changing visas. Changing visas is not easy. Oftentimes, an attorney can help you navigate the process. Understanding and being engaged in the process can help you anticipate issues faced in the process and help you to better plan. Whether you can plan your next move or whether you can look to the future, we wish the best for you.

To get more detailed information about whether you should switch to a tourist visa or not and need expert advice, then I have got you covered; TerraTern is right there as expert advice to help you decide and also help you with the process!