Can I file a B-2 change of status petition before the H-1B status expires (before the expiration of the I-94 date) and before I leave my job?
Yes. As long as you are in lawful status, U.S. immigration law allows you to apply for a “change of status” between nonimmigrant visas, which includes both the H-1B and B-2 visas (see 8 U.S.C. section 1258). In response to this question and the questions that follow, the issue mainly boils down to whether you are in lawful status. In general, if you are in lawful status, you can apply for a change of status.
So can you file a change of status petition while you are in lawful H-1B status? Yes. Since you would be in lawful status before your H-1B status expires, you can apply for a change of status to a B-2 visa during that time.
Can I file a change of status petition after I leave my job, but while I still have a valid I-94?
If your employment ended within the previous 60 days and your I-94 is valid, yes, you can file a change of status petition.
If your H-1B employment ends before your I-94 expires (for example, if you are laid off due to a lack of work), you are given the shorter of 60 consecutive days or the end of your original authorized stay (your I-94 date) to remain in the U.S. This period is intended to give you the opportunity to either find other employment or to make plans to leave the U.S. Because this period is considered lawful, authorized status, you may file a change of status petition during it.
Please be aware, though, that you cannot work during this period.
Can I file a change of status petition after my I-94 expires?
No. Remember, as noted above, that once your H-1B employment ends, you are only allowed an authorized stay in the U.S. until the sooner of either 60 consecutive days or the end of your original I-94 expiration date. If your H-1B employment has ended and your I-94 has expired, you are no longer in legal status and cannot file for a change of status.
Can I file an H-1B petition after my I-94 expires and after any grace period?
As explained in the prior responses, once your H-1B employment ends, you have the shorter of either 60 consecutive days or the expiration of your I-94 to remain in the U.S. and to file a change of status petition. Once either of those events occurs, you lose your ability to file a change of status petition.
In this case, because you would be out of status, you would not be able to file a change of status petition while within the U.S. Instead, you must leave the U.S. and apply for the visa abroad. The current restrictions imposed by presidential proclamations generally restrict one’s ability to apply for an H-1B visa abroad, with certain exceptions. Please contact a qualified immigration attorney if you plan to pursue an H-1B visa while outside the U.S.
I applied for a change of status during the 60-day period of authorized stay. The 60-day period has now ended. I want to travel outside the U.S. while my change of status application is pending. Can I?
No. If you leave the U.S. while a change of status application is pending, the government deems that you have abandoned that application. Even if the government mistakenly approves your application after you leave the U.S., that approval is deemed void. See our post on this subject here. Keep in mind that change of status petitions often take months to process, meaning that you might need to wait an extended period of time before being able to travel without abandoning the petition.
I have filed a change of status petition while in valid status. While waiting for the change of status petition to be approved, I found another job that qualifies for an H-1B visa. Can I pursue that now?
In this case, you would need to wait until your pending B-2 visa application is approved before pursuing an H-1B visa and beginning employment in a new H-1B role.
I have applied for an H-1B visa while in status, but the H-1B application was denied. Will that impact my future visa applications?
In general, no, this would not negatively impact your future visa applications. Because it is the employer – rather than the beneficiary – who submits the H-1B petition, a denial only applies to the employer, and not the beneficiary. As a result, so long as you maintained underlying lawful status, the denial of an H-1B petition should not impact your future visa applications.
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