Can I change from H-1B to visitor staus while I look for work, then back to H-1B?

It may be a sign of the times that the above question (in various forms) is becoming very frequent. Some actual examples are:

"Can I switch to H1b to visitor visa and then back to H1B in a short term? My current h1 is expiring, but I have 2 yrs remaining on my 6yrs. If I change status to visitor visa, can I change back to h1 once i get a new project and start working without leaving the country?"

"My current H1B expires at the end of March 30th, 2009. I was told I cannot currently extend it because I am employed with a staffing company and I do not have a project start date in hand yet and hence no contract agreement with any client, but am working on something that will come through in mid-April or early May. Can I switch to a B2 visa (to keep me in status) and then switch back to H1 without the quota since I have time remaining on my H1, all without leaving the country?"

Answer:

It is unlikely that CIS would approve a B-2 petition for the above foreign nationals, unfortunately. B-2 holders need to have "nonimmigrant intent" i.e. they need to intend to return to their home country at the end of their B-2 stay. Having been here in H-1B status, and being unable to state that they intend to return home, shows that the foreign national probably doesn't have the requiremed nonimmigrant intent. The situation would be different if the foreign national really did intend to return home and was just asking for B-2 time to sell a house, pack, etc. However, looking for a job is not a legitimate B-2 activity.

If the foreign national finds a new employer who files a new H-1B petition, this new petition could be decided in a number of ways, assuming it is not denied completely. At best, the new employer could get approval for their H-1B and an automatic change or extension of the worker's H-1B status. However, if there is a long gap between the last H-1B employment and the new filing, CIS might just approve the H-1B part of the petition, but not the automatic change of employer/extension part. This could happen if CIS considered that the foreign national was maintaining status at the time of filing. This means that the foreign national would need to leave the US and return showing a valid H-1B visa (even for an old employer) and the new approval notice, to "activate" the H-1B status for the new employer.

Please see here for the difference between "visa" and "status". See here for FAQs regarding when a new visa is needed.

New guidelines for H-1B cap cases from CIS

The H-1B cap deadline is next week. All petitions for a new H-1B to start anytime from 10/1/09 to 9/31/10 (unless for a cap-exempt organization) need to be filed with USCIS by April 1, 2009. As reminder, the people most like to need a H-1B in that period include:

• foreign national students whose current work authorization expires before 9/30/10;
• people who need to change from another work-authorized status, e.g. TN holders who want to start permanent residence or L-1B holders reaching their maximum stay; and
• people who might not need H-1B status till after 10/1/10, but want more than one chance at the H-1B lottery. This means that foreign nationals reaching their maximum L-1 stay before 10/1/2011 should possibly apply for H-1B status by 4/1/09.

To help employers and their attorneys, USCIS released various guidance documents listed here. These documents include information on the H-1B restrictions that apply to employers who received TARP funding (see earlier posting here) and on the 2010 cap general, including a Question and Answer format here.