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.

Malta added to Visa Waiver Program

The Department of Homeland Security (DHS) now allows Maltese nationals to make use of the Visa Waiver Program (VWP), as of December 30, 2008. Travellers will be able to enter the US for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

To travel to the United States under the VWP, an alien must be from a participating country and must (1) be seeking entry as a tourist for a period of 90 days or less; (2) be a national of a VWP participant country; (3) present an electronic passport or a machine readable passport issued by a designated VWP participant country to the air or vessel carrier before departure; (4) execute the required immigration forms; (5) if arriving by air or sea, arrive on an authorized carrier; (6) not represent a threat to the welfare, health, safety or security of the United States; (7) have not violated U.S. immigration law during a previous admission under the visa waiver program; (8) possess a round trip ticket; and (9) waive the right to review or appeal a decision regarding admissibility or to contest other than on the basis of an application for asylum, any action for removal.

For more information about the Visa Waiver program and ESTA, please see our blog post dated 11/17/08: http://martinvisalaw.blogspot.com/search/label/visa%20waive.

7 new countries added to Visa Waiver Program

The US Department of State has increased the number of participating Visa Waiver Program countries from 27 to 34. The seven new countries are: the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia. The 27 countries that were already in the VWP before November 17, 2008 are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Starting today, visitors from the 7 new countries will need to apply for ESTA (Electronic System for Travel Authorization) before they travel. From January 12, 2009 onwards, all VWP travellers will need ESTA clearance. Full details about the ESTA program, including FAQs and information sheets, are here: http://www.cbp.gov/xp/cgov/travel/id_visa/esta/.