Faced with the difficulty of finding an H-1B sponsor from abroad, individuals frequently inquire as to how they can change their status from B-2 to H-1B or from B-1 to H-1B from within the United States. B-1 and B-2 visas are non-immigrant visas issued to foreign nationals visiting the United States for short periods of time, usually from 3-6 months.
Overview of B-1 and B-2 visa
A B-1 visa is a temporary business visitor visa and is issued to individuals participating in business activities of a commercial or professional nature in the United States. A B-2 visa is a temporary visa issued to individuals who are coming to the United States temporarily for leisure, vacation, or pleasure.
At this time, the maximum time an individual is permitted to remain in the United States on any one trip is one year, including extensions. Yet, extensions of up to one year can be difficult to obtain and require extensive documentation in comparison to the initial B-1 or B-2 filing.
B-1 and B-2 visa holders are not authorized to seek any form of employment within the United States. They are also unable to earn credit for any studies done in the country. However, they may have an employer petition for them to convert to H-1B status if the requirements are met.
What You Need for an H-1B Visa
The H-1B visa has several advantages that make it a good choice for working in the U.S. It has relatively easy-to-meet requirements, allows you to stay in the U.S. for up to six years with extensions, and is highly portable. Portability means that you can work full- or part-time, change your job, and even work for multiple employers at the same time.
The requirements are simple at first glance. You must:
- Have a job offer from a U.S. employer for a specialty position
- Have at least a bachelor’s degree that is required for your position
The main nuances to keep in mind are the fact that you need to prove that you and your employer have a valid employer-employee relationship (meaning that you cannot petition for yourself or be your own employer). You also need to make it clear that your position is considered to be a specialty occupation that requires your degree.
B-1/B-2 to H-1B Change of Status
While it is possible for an individual to change status from B-2 to H-1B, he or she may run into a few issues:
First, if an H-1B visa is not currently available, he or she will likely have to wait for an employer to petition for him or her until April of the following year during the H-1B lottery process. The lottery process lasts about one week, usually beginning on April 1st of each year.
In general, if the individual has previously been on H-1B status or if a cap-exempt employer is filing the petition, then this issue does not apply. To determine whether the employer is cap exempt, an individual seeking H-1B status should inquire with his or her prospective H-1B employer or a qualified immigration lawyer.
Second, if the H-1B petition is eventually selected in the lottery and approved, H-1B status will only begin on October 1st of the same year. Therefore, to apply for a change of status from B-2 to H-1B or a change of status from B-1 to H-1B, the individual will need to maintain status from the time he or she initially enters the United States until October 1st.
Therefore, if you are filing a cap-subject petition, you will need to have your employer file the petition on April 1st and you will not be able to start working as an H-1B employee until October 1st.
You also need to keep in mind that your U.S. employer must first obtain a Labor Condition Application on your behalf. This means that four attestations must be made:
- You will be paid the prevailing wage of your position according to your geographic area
- Your employment will not adversely affect the working conditions of the current employees
- The current employees have been notified of the intent to hire you
- There is no strike or lockout taking place at the place of work
Next comes the annual H-1B lottery. The lottery can easily end up being your biggest obstacle to changing your status from B-1/B-2 to H-1B. There are only 85,000 total positions available and 20,000 of those are for those that have advanced degrees. Because, in the past, over 200,000 people have petitioned, the odds can seem a bit overwhelming.
Unfortunately, the only way to improve these chances is to have an advanced degree. The USCIS will first pick those 20,000 from those that have master’s degrees or higher. Those with advanced degrees that are not chosen will be re-entered into the lottery to be selected for the 65,000-slot regular cap.
If your petition is selected in the cap, that’s not the end of the road. Your petition will then be processed by the USCIS to determine if you and your employer truly meet the requirements for the H-1B visa. If you are approved, then as we said, your status will change on October 1st. But how can you maintain your nonimmigrant status until then?
B-1/B-2 to H-1B: How to Maintain Status
This means that the individual will need to successfully obtain extensions of their B-2 or B-1 status until October 1st. He or she will need to apply for the change of status before the expiration of the B-1 or B-2 as per the I-94.
He or she will also need to abide by all restrictions attached to their particular status, which means the individual will not be permitted to work until October 1st. If these things cannot be accomplished, s/he should not apply for a change of status to H-1B within the United States.
If the individual is unable to maintain his or her status until October 1st when the H-1B becomes active, the H-1B petition will need to be filed with consular processing instead. This means that after the individual has secured a job in the United States while in valid B-1 or B-2 status and before the termination of his or her B-1 or B-2 status, the individual should exit the country.
The sponsoring employer will then submit the petition during the H-1B lottery with the individual abroad, and request that the individual be permitted to re-enter the country at a later time.
If the petition is ultimately selected and approved in the lottery, the individual will need to go for H-1B visa stamping abroad before entering the United States on H-1B status.
H-1B Visa Stamping for B1/B2 visa holders
“B-2 to H-1B visa stamping,” as it is often referred, should occur in advance of the H-1B start date of October 1st. Foreign nationals are permitted to have more than one valid visa in their passport at a time.
Generally, a consular official will not remove the B-1 visa or B-2 visa from the existing passport since having a visitor visa is not inconsistent with many other non-immigrant visa statuses. Therefore, obtaining the H-1B stamping does not require the cancellation of the B-1 or B-2 visa.
H-1B stamping requires different documentation than B-1 or B-2 stamping and allows for different entry dates. Some of the documents a beneficiary may bring to the H-1B stamping include: a valid passport, Form I-129, certified Labor Condition Application, Petitioner’s support letter, degree and transcripts, academic evaluation, work experience letters, and a resume.
Premium processing is an optional service that expedites the processing time of visas and green cards that make use of the I-129 and I-140 petitions to 15 calendar days–this makes the H-1B a prime candidate, right?
Actually, because the H-1B has rigid dates for filing and starting work, premium processing may not be an optimal choice to get you from B-1/B-2 to H-1B status. Speak with your immigration attorney to determine if this route is appropriate for your case.
IMPORTANT UPDATE: Premium processing has been suspended for all cap-subject petitions for the 2019 fiscal year. The suspension will take place April 2, 2018 and continue until September 10, 2018. To read more about this suspension and how it affects your case, read our premium processing suspension update.
B-1/B-2 to H1B: Conclusion
While the H-1B visa may have an issue date well in advance of October 1st, a beneficiary is not permitted to enter the United States immediately following stamping; rather, a beneficiary can only enter the country up to 10 days before the October 1st start date.
Some people mistakenly refer to the process of changing from B-2 to H-1B or B-1 to H-1B as a “B-2 to H-1B visa transfer.” For clarity, the “H-1B visa transfer” process refers to the time when an H-1B beneficiary changes jobs to a different H-1B employer. This is a bit of a misnomer, however, because nothing is actually transferred during the process.
How Our Immigration Attorneys Can Help
Making intricate visa transfers can be difficult even for the savvy applicant. With all of the paperwork, dates, and filing issues, it can be easy to make simple mistakes that will cost you and your employer both time and money. Those that choose to hire an immigration attorney, however, experience much higher rates of success than those that don’t.
If you’re currently in the United States on a B-1 or B-2 visa and have an employer interested in sponsoring you for an H-1B work visa, we can help. By retaining SGM Law Group, you can avoid all of the simple mistakes while also being able to tackle larger obstacles along your immigration journey.
Contact our attorneys to learn about the process and options available to you. To do this, you can fill out our contact form and we will schedule your consultation today!