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.

What is the difference between "visa" and "status"?

It is very common for people to use the term "visa" when referring to a foreign national's immigration status in the US. For example, people will ask "what visa do I need to study here?" or "when does your visa expire?" when they really want to know when the authorized stay expires. So what exactly is a "visa" and why is using that word confusing?

1. "Visa" vs "status" explained.

Unless you are Canadian, you will need a visa stamp on your passport to enter the US. The visa is the stamp on your passport that you get a U.S consulate outside the US. You cannot get a visa in the US. The visa is a travel document and is only needed to enter the US. Once you are in the US, you can stay past the expiration of your visa as explained below.

"Status" means that category in which you entered the US (e.g. H-1B, L-2, B-1) and the length of time you can stay here. This may not always be the same as the visa, for example if you entered in F-1 status, using an F-1 visa, and then changed to H-1B status.

2. How long can I stay in the U.S?

You can stay in the US as long as your status allows. Normally, this length of time is dictated by your I-94. The I-94 is the small white (or green if you used the Visa Waiver Program to enter) card that a US immigration officer put in your passport when you entered the US. If you had a change or extension of status approved after you first entered the US, the approval notice will have a new I-94 attached to the bottom. This new I-94 should show long you can stay here. However, any travel close to the approval, or after the approval, might affect how long you can stay in the US, so please ask your attorney for specific advice.

3. Do I need a new visa after my status has been extended?

In general, you only need a new visa stamp in your passport to return to the US after the current visa has expired. If you are not traveling, you can stay in the US after the expiration of your visa provided that your status has been extended. If you travel before your visa has expired, and you have an extension approval, you should show both the old, unexpired, visa and the extension approval, to the immigration officer and you should get the extension end date on your new I-94.

4. Do I need a new visa after my status has been changed?

If you are not traveling, you can stay in the US after a change of status without needing a new visa. After the change of status has been approved, however, you will need to get a new visa (showing the new status) before you can return to the US in the new status.

5. Where can I get a visa?

You can get a visa at a consulate in your home country or in another country to which you have close ties. Many foreign nationals also apply for visas at consulates in Canada or Mexico. Please check the website of the consulate where you want to apply, for specific procedures, document requirements, and waiting times.

Holiday Travel Guidelines for Foreign Nationals

The USCIS Office of Community Relations issued a reminder that certain people must get Advance Parole before traveling outside the US for the holidays. Martin Immigration Law circulated a "Holiday 2008 Travel Guidelines" document to clients and friends a few weeks ago, and you can review this on our website. It is always a good idea to make sure that you have the correct documents to return to the US well before making any international travel plans.