Changing Status Before Expiration of H1B Visa

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Dear Atty. Lou,

I am currently in the United States on an H1B visa. My employer gave me a notice of termination but before my termination, I filed for a change of status to B2 visa.  I just want to inquire on the following: (1) I am planning to go back home to the Philippines and I cannot wait for the B2 decision. What will happen to my change of status visa application filed with the U.S. Citizenship and Immigration Services? (2) If I am already in the Philippines and get a job offer and sponsorship from a U.S. employer that I am applying for, how will the pending B2 visa application affect my future H1B application and interview in the US Embassy?

Roda

Dear Roda,

You did the correct step of filing for a change of status to a B2 visa before your H1B visa was considered terminated. If this application for change of status will be approved and you are still in the United States, then you are authorized to stay in the United States for the period of time you requested on your application. Your letter states that your application for change of status to B2 visa is still pending and you are now planning to return to the Philippines without waiting for the decision on your B2 visa application.  If you leave and your application for B2 visa is subsequently approved, then you will not be deemed to have incurred unlawful presence in the United States. On the other hand, if you depart from the U.S. and your application for change of status to B2 visa is subsequently denied, you will be deemed to have incurred unlawful presence from the date your H1B expired up to the time you left the United States.

The answer to your second question depends on whether or not you have incurred unlawful presence. If you have a new job offer for an H1B visa and you are already in the Philippines, your visa application at the U.S. Embassy will be approved if you had not incurred unlawful presence. This means that your pending B2 visa application should have been approved. Otherwise, there might be an issue in regards to any new visa applications.

While unlawful presence in the United States may be a ground for denial of future visa applications, US immigration law is clear about the 3-year/10-year bars. If the unlawful presence is six months to less than one year, you will be barred from being admitted to the United States for three years. The bars to admission will be ten years if you incurred unlawful presence for more than one year. In your case, if you leave for the Philippines before the six months of your H1B expiration, you will not be barred from re-entering the United States should there be a new petitioner who is willing to petition you.

To those who are in the United States on a temporary visa status (e.g. visitor or student visa), it is now H1B season. Plan appropriately for your change of status to H1B if you have a job offer from a U.S. employer. These H1B petitions are usually filed on April 1 for the October 1 start date. Since there are only 65,000 visas available for each fiscal year, it will be best to start filing on the first day of the H1B season to increase one’s chance of being included in the cap.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com).

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