Attorney Insight
We recently assisted a mid-level executive from a Chinese tech company who lost his H-1B employment due to company restructuring. He was concerned about maintaining lawful status while seeking new job opportunities in the U.S. From our experience, applying for a change of status from H-1B to B-1/B-2 visitor status within the 60-day grace period after termination is a viable strategy to avoid immediate departure.

Under 8 CFR §214.1(l)(2), H-1B workers have a 60-day grace period following employment termination to either find new H-1B sponsorship, change status, or depart the U.S. Filing Form I-539 to switch to B-1/B-2 status during this window allows the individual to remain lawfully in the country as a visitor. This approach gives valuable time to attend interviews, negotiate employment, and prepare H-1B transfer or new visa petitions without triggering unlawful presence.

Important Notice
However, we caution that USCIS scrutinizes these change of status applications closely. Over the past year, about 30% of such I-539 filings by our clients faced Requests for Evidence (RFEs), often related to demonstrating non-immigrant intent and clear plans for departure if no employment materializes. We recommend submitting a detailed cover letter explaining the purpose of the stay, evidence of job search or upcoming interviews, and proof of financial means to support oneself during the visitor status.

Another practical tip is to file the I-539 application as early as possible within the 60-day grace period. USCIS processing times for I-539 can range from 3 to 6 months depending on the service center [2]. Delayed filing risks status expiration and accrual of unlawful presence. Meanwhile, maintaining valid status preserves eligibility for future H-1B cap-exempt transfers or other visa categories such as O-1 or L-1 for executives.

From the employer’s perspective, companies hiring former H-1B workers should be aware that the candidate’s status during this interim period may be visitor, which prohibits work. Therefore, timing the new H-1B petition carefully is critical to avoid gaps. We suggest employers coordinate closely with immigration counsel to file the new I-129 petition before or immediately after the I-539 approval.

In summary, for executives or skilled workers facing H-1B termination, converting to B-1/B-2 status within the 60-day grace period is a useful bridge strategy. Key action items include: 1) filing Form I-539 promptly with comprehensive supporting documents; 2) preparing for eventual H-1B transfer or other visa petitions during the visitor status; 3) engaging employers early to plan timing of new petitions. These steps help preserve lawful presence and maximize chances of smooth transition back to employment.

We advise clients to monitor their I-797 approval notices and USCIS case status online regularly. If an RFE arrives, respond fully and promptly with legal assistance. Maintaining lawful status is paramount to avoid jeopardizing future immigration benefits under INA §214(g)(1)(A).

This approach aligns well with our client base of Chinese executives and investors who value maintaining continuous lawful status while navigating unpredictable employment changes. Understanding the regulatory framework and USCIS practice nuances allows us to craft tailored strategies that minimize risk and maintain flexibility.

What this means for you: if you or your employees face H-1B termination, do not rush to leave the U.S. Instead, consider timely filing a change to B-1/B-2 status to buy time for job search and new visa processing. Coordinate with your immigration counsel and employer to map out the next steps carefully and avoid gaps in status.