B-1/B-2 visa option for those who have been laid off and cannot get a conversion into H-1B visa quickly

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B-1/B-2 visa option for those who have been laid off and cannot get an H-1B transfer within the grace period

When laid off, remember the following four rules.

  • First, you have a grace period of 60 days or the time remaining on your I-94, whichever is lesser.
  • Second, your grace period begins NOT after you stop working but after your pay period that is covered by your last paycheck.
  • Third, your H-1B transfer application must be FILED (NOT approved) within the grace period.
  • Fourth, you can most likely start working at the new job (discuss the details with your lawyers) upon filing within the grace period.

If you are not able to obtain a job, the B-1/B-2 status allows a laid-off worker to stay in the United States for six months or more. The process involves filing online (or paper filing) using form I-539. Carefully read and follow the official instructions.  I would recommend also attaching a letter that explains the situation, including the facts:

  • The individual has been laid off unexpectedly and has not been able to find a job
  • They have enough money to support themselves.
  • They will not work without authorization.
  • They have never broken any laws.

You should ask for six months from the date of filing and will then be allowed to stay in the United States while this timely filed petition is pending. This pendency period is referred to as an "authorized period of stay." However, you cannot convert to another status from this waiting period. If you obtain another job, and an H-1B is approved after your grace period (usually 60 days) is over, and B-1/B-2 is still pending, you will most likely have to step outside the United States to obtain an H-1B visa at a consulate before you can start to work again.

I would recommend going to any third country around the US for an H-1B visa stamping. Even if it is a first-time H-1B stamping, such visa stamping is a perfectly acceptable process called Third Country National (TCN) processing.

Note that if you are not able to find a job within the six months you have requested, you should apply for another B extension while the first one is still pending and before the six months you have requested are over. It is quite likely that your B-1/B-2 petition will take longer than six months for adjudication. So, a second petition will almost always be needed if you are still seeking employment.


Immigration Law

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