H-1b Post-Termination Change of Status to B1/B2/F1/F2/H4 – Comprehensive Q&A

Immigration law being examined under this case study.
Scenario
Kumar was terminated from his employment on April 1st. He was on H-1b status since October 1, 2019, having been selected in the H-1b lottery and received approval to transition from STEM OPT to H-1b status on October 1, 2019. Kumar’s employer (A) has filed to withdraw his H-1b status, and online case status shows that withdrawal was processed on April 18. Kumar’s last paycheck is dated April 5, 2020. Kumar has an unexpired H-1b visa in his passport because he got stamping done in December 2019. Kumar also has an expired F-1 visa in his passport and a valid B1/B-2 visa until 2021. Kumar’s spouse just started her F-1 OPT and is eligible for STEM OPT.
 
Kumar is considering his options after termination. He has the following questions.
*COS = Change of status
  • When is the best time to apply for COS application?

As soon as possible or at least before June 5 when the 60-day grace period ends because COS application that is filed within the grace period has higher likelihood of approval. If you are filing the COS application after the 60-day grace period, you should link the late filing to COVID-19 or circumstances outside of your control to persuade USCIS to approve your COS application. Filing outside the 60 day grace period would be considered a “late filing”, which, although acceptable, would require a reasonable explanation for circumstances outside of applicant’s control.

  • Do I have to file a COS application?

No. But not filing a COS application will mean that you be outside of authorized stay after the 60 day grace period. If your I-94 is going to expire soon (or is already expired within the 60 day grace period), you will also start to accrue unlawful presence, which may result in a 3 year or 10 year bar if it exceeds 180 or 360 days. If you are not filing a COS application, you should be making plans to depart the United States shortly after the 60-day grace period ends.

  • Can I get back onto H-1b status if I don’t file a COS application?

Yes. But, if the new H-1b petition is filed outside the 60-day grace period, you may be required to enter the United States to activate the new petition. Filing the COS application or not will not change the fact that a new employer can file a new H-1b petition for you without going through the lottery again (at least within the next year).

  • Is it better to change to F-1 or B-1/B2 status?

If you are planning to find an employer quickly or leave the United States, then B-1/B-2 is the better option because the application and cost is relatively simpler compared to a change of status to F-1. Filing a change of status to F-1 requires you to first secure Form I-20 from an eligible educational institution, pay tuition and SEVIS fee online, which can be expensive compared to a change of status to B-2 application, which requires relatively fewer evidence to be approved. However, F-1 status can last much longer, so if you have long term plan to stay in the United States, filing a change of status to F-1 may make more sense, and it also gives you more time to look for H-1b employer in the United States.

  • Can I file COS application even after my 60 day grace period ends?

Yes, but the chance of approval may be dramatically decreased because USCIS may find that there is a gap in the authorized stay and deny the change of status.

  • How does USCIS calculate when the 60 day starts?
    • Is it the date on my last paycheck?
      • Yes, USCIS typically looks at the last paycheck to determine the start date of the 60-day grace period.
    • Is it the date my H-1b petition was withdrawn?
      • Sometimes, USCIS will consider the 60-day to start after the H-1b petition was withdrawn by the employer even though the last paycheck is dated before the withdrawal of the petition.
  • When should the start date be on the COS application for my next status?
    • We recommend putting the start date as the end date of the grace period because according to the USCIS Memo from 2017 (cited below), the 60 day grace period is considered “authorized stay” and applicant can put the last date of the grace period as the start date of the new status. If you are applying for a change of status to F-1, you should put the start date as the start date and make sure that the school start date is within 30 days of the last day of the 60-day grace period.
  • Can I get back onto H-1b status if I file COS?
    • Yes. Most applicants file COS with the implicit goal of returning to H-1b status. Most applicants do not wait until a decision on the COS application is made from USCIS because they find new H-1b employment and depart the United States to re-enter on H-1b visa. You can wait until USCIS adjudicates the COS application, and if approved, and have your next employer file H-1b petition and request COS to H-1b, but this will be viable strategy if premium processing is available because without premium processing, the processing time for COS can be more than 6 months.
  • Can I get back onto H-1b status even if my next H-1b is filed after 60 day grace period?
    • Yes. If you find a new employer after the 60-day grace period ends, you should be prepared to exit the country and return when the petition is approved because USCIS may not approve the extension of H-1b status request because of the gap between the end of the 60-day grace period and the filing of the H-1b petition.
  • How do I get back onto H-1b status if my next H-1b is filed within 60 day grace period?
    • When the petition is approved, the extension of H-1b status should also be approved and USCIS will attach a new, extended I-94 under the H-1b petition. If a COS application was filed previously, the application should be withdrawn and no re-entry into the United States is necessary.
  • How do I get back onto H-1b status if my next H-1b is filed outside the 60 day grace period?
    • When the petition is approved, the extension of H-1b status may be denied and USCIS will send an I-797B approval notice without an I-94. The beneficiary of the H-1b petition must take the I-797B approval notice and re-enter the US with a valid H-1b visa to activate the new petition. If a COS application was filed and not adjudicated yet by USCIS, the departure will automatically cancel the COS application. Just to be safe, we recommend sending a withdrawal letter to USCIS to end the COS application upon re-entering the US on H-1b visa.
  • After filing COS, if I find a new employer for H-1b, and they file the petition for me within the 60 day grace period, can I start working for the employer upon receipt?
    • Generally, yes if the I-94 has not yet expired when the new petition is field.
  • After filing COS, if I find a new employer for H-1b, and they file the petition for me outside the 60 day grace period, can I start working for the employer upon receipt?
    • Generally, the answer is still yes if the new petition is filed while the I-94 has not yet expired.
  • Can I continue working for new H-1b employer if USCIS approves my H-1b petition but did not give me a new I-94? I only received I-797B.
    • No, because work authorization ends when the H-1b petition is approved without the I-94. The beneficiary must take the approval notice, go outside the US and re-enter the US with the H-1b visa to activate it.
  • If I could not find an employer after several months and decide to return to my home country, can an employer file an H-1b petition for me while I am abroad?
    • Yes.
  • Can an employer file an H-1b petition for me while I am waiting for COS application if my last employer has withdrawn my H-1b petition?
    • Yes, the withdrawal of the previous petition does not affect future H-1b petitions.
  • What if I don’t file a COS application?
    • Then you should calculate 180 days from the date of your termination and depart from the United States without accruing 180 days of unlawful presence. We recommend departing the US soon after the 60-day grace period ends.
  • Will filing a COS application affect my H-1b visa stamping in the future?
    • No.
  • Can my dependent (spouse, children) be included in my COS application?
    • Yes.
  • Can I re-enter the US on B-1 visa and have a new employer file H-1b petition?
    • Yes.
  • Can I re-enter the US on B-1 visa and have a new employer file H-1b petition and join employer upon receipt?
    • No, because AC21 does not apply when you COS from a B-2 to H-1b, so work authorization would attach only when the H-1b petition is approved with a change of status request approved. You should also be aware that given new advisory from Department of State, filing a change of status within 90 days of entering the US will likely be deemed as preconceived intention to change status, which may cause issues with future visa application.
Legal references:
(Establishing 60 day grace period for change of status if non-immigrant workers in H-1b is laid off due to circumstances beyond their control)

The H1B portability statute is found in section 214(n) of the Immigration and Nationality Act (INA). The identical provision is found in section 105 of AC21.

Under section 214(n)(2) of the INA, H1B portability may apply to an alien described by the following three points:

A. Has been lawfully admitted into the United States under section 101(a)(15)(H)(i)(b) of the INA (in H1B status);


B. Has had an employer file a non-frivolous petition for new H1B employment on his or her behalf prior to the expiration of the period of stay authorized by the Secretary of Homeland Security; and


C. Who, subsequent to his or her previous lawful admission, has not been employed without authorization prior to the filing of the new non-frivolous H1B petition.

Section 214(b)(1) discusses how H1B portability works in more detail. Under section 214(b)(1), an alien who was admitted in H1B status may accept new employment upon the filing of a new H1B petition by a prospective employer. The emphasis on filing is key, meaning that employment may begin when the non-frivolous petition is properly filed instead of the alien having to wait until the petition is approved. The statute states that the employment authorization will continue until the new petition is adjudicated. If the petition is denied, the employment authorization ceases. It is important to note that the H1B worker must otherwise uphold all of the requirements for maintaining H1B status while exercising H1B portability.
8 C.F.R. 214.2(h)(2)(i)(H)(1)(ii) requires that a non-frivolous H1B petition for new employment have been filed on the H1B worker’s behalf. This includes a petition for new employment with the same employer. The new H1B petition, or H1B portability petition, must be filed in conjunction with a request to amend or extend the H1B worker’s stay. The H1B portability petition must be filed before the expiration of the H1B nonimmigrant’s current period of stay authorized by the Secretary of Homeland Security.
Neufeld 2009 Memorandum – “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act” (May 6, 2009) [PDF version]
An alien whose authorized status expires while a timely filed request for [Extension of Status] or [Change of Status] is pending, is in a period of stay authorized by the Secretary of Homeland Security.

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