Laid-off H-1B visa holders are struggling to transition to another non-immigrant visa while searching for new employment in the US. US immigration laws give H-1B holders who have lost their jobs a 60-day grace period to find a new employer or leave the country.
During this 60-day window, they may search for a new job and switch to another visa, such as a B1/B2 visa, which is typically a tourist or business visa. A B1/B2 visa helps the laid-off H-1B holder to prolong the stay in the US and not necessarily leave within 60 days.
However, several cases have emerged in which Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) are being issued to laid-off H-1B visa holders who have applied for B-2 visas.
So what exactly is happening — and why?
Current rules allow individuals to file Form I-539 to change their status to B-2 visitor, letting them stay lawfully in the US beyond 60 days. The rules also allow changing status to student status, for example, F-1, in addition to a visitor status (B-1 or B-2).
However, by statute, B-1 and B-2 nonimmigrant visitors are specifically precluded from “performing skilled or unskilled labor” in the United States. If a new employer later submits Form I-129, the person may change their status back to H-1B.
“Applying for a Change of Status (COS) to B-2 during that window has historically been a recognised strategy — a ‘bridge’ that buys time while the person searches for a new employer or explores their options. This ‘bridge’ allows workers to stay beyond the 60-day grace period, though they cannot work until a new H-1B petition is filed and approved,” says Navneet S. Chugh, Attorney, C.P.A., Chugh, LLP.
But is that ‘bridge’ now under serious scrutiny?
“Yes, and this is one of the most consequential patterns we’re watching right now. USCIS is issuing RFEs and, in some cases, NOIDs on B-2 Change of Status applications filed by laid-off H-1B holders.
The core argument USCIS is making: if you filed for B-2 and then filed a new H-1B petition shortly after, it shows that your original intent was never tourist-grade and that you filed for B-2 with the preconceived intent to work, not to visit. Under B-2 rules, that is disqualifying.
This is the ‘preconceived intent’ doctrine being applied in a new and uncomfortable direction. What was for years treated as smart immigration planning is now being characterised as misrepresentation of purpose,” says Dmitry Litvinov, CEO and Founder of Dreem.
“USCIS has been scrutinising these applications more closely. RFEs and NOIDs are being issued in cases where there are concerns about the applicant’s intent, maintenance of status, or whether the person is effectively using a visitor visa to remain in the US for job-seeking,” adds Chugh.
What do current USCIS rules actually say?
Current USCIS rules clearly state that you must not file Form I-539 to request a change of status to classifications that include H-1B, among others, but not B1/B2. That means switching to B1/B2 is permitted, but switching back to H-1B directly from another specified classification is not. Form I-539 may also be used if you are a non-immigrant F-1 or M-1 student applying for reinstatement.
“The problem is that this framework is under active scrutiny in the current enforcement environment. USCIS is no longer treating the B-2 bridge as a routine compliance pathway. It is treating it as a potential red flag — and it’s worth understanding exactly why before relying on it as a plan,” says Litvinov.
The 60-day grace period is discretionary, and one must clearly establish the reasons for an extension or change of status after losing a job while on an H-1B visa.
Sonam Chanwani, Managing Partner, KS Legal & Associates, says, “It is legally possible to seek a change of status from H-1B to B1/B2 through USCIS, but it is not a safe workaround to stay back and job hunt. The visitor category requires clear temporary intent, and any indication of using it as a bridge to employment invites scrutiny and can affect future filings.”
“RFEs and NOIDs are indeed being issued more frequently in such cases, especially where there are gaps after the 60-day grace period or weak justification of intent RFEs come during review for clarification, while NOIDs are issued when rejection is almost certain unless convincingly rebutted,” adds Chanwani.
Disclaimer: This article is for general informational purposes only and does not constitute legal, immigration, or tax advice. Immigration laws and government policies are subject to frequent change without notice. While we strive to provide accurate updates, readers are strongly advised to verify the latest requirements with the official embassy, consulate, or government portal of the respective country. Financial Express is not responsible for any decisions made based on this information. For personalized guidance, please consult a qualified immigration attorney or a certified professional advisor.