B-1 and B-2 visas are non-immigrant visas issued to foreign nationals visiting the United States for short periods, usually 3-6 months. Faced with a layoff, individuals frequently inquire how they can change their status from H-1B to B-1/B-2 during the grace period to protect their status and then back to H-1B after securing employment. In this guide, you will learn all about transitioning between the two visa types and possible issues of converting from B-1/B-2 to an H-1B visa.
Have questions around a B-1/B-2 visa?
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 can be difficult to obtain and require extensive documentation in comparison to the initial B-1 or B-2 filing.
Can H-1B Holders Transition to a B-1/B-2 Visa?
According to a USCIS archived webpage, USCIS states the following:
“Yes, searching for employment and interviewing for a position are permissible B-1 or B-2 activities. By statute, however, you may not engage in employment within the domestic labor market (also known as “local labor for hire”) while in B-1 status or engage in any employment while in B-2 status. Before beginning any new employment, a petition and request for a change of status from B-1 or B-2 to an employment-authorized status must be approved, and the new status must take effect.”
Based on this information, you may have an employer petition for you to convert to H-1B status if all eligibility criteria are met.
However, the legal community has reported instances of USCIS denials or NOIDS following application, where adjudicating officers stated that job searching is not a permissible B-2 activity and that USCIS guidance permitting such activity is “archived” and therefore not valid. Because of this, it’s important to work with a qualified attorney to understand your options.
Requirements 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
- 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
- Having at least a bachelor’s degree is required for your position
What to Know Before Filing a Change of Status From B-1/B-2 to H-1B
While many individuals choose to convert from B-2 to H-1B, it is important to be aware of several hurdles:
H-1B Availability and Timeline
If you have been counted against the H-1B cap, you do not need to enter the lottery again. A new sponsor can file a petition on your behalf at any point in the year. The key takeaway is maintaining your status until you have a new petition approved.
However, if you have not had an H-1B approved in the past, your employer must register you in the H-1B lottery and align with the strict timeline of the lottery. The lottery typically runs in March for two weeks, and the petition filing window runs from April to June.
The H-1B Lottery and Chances
The H-1B lottery is easily the biggest obstacle for those who wish to change status from B-1/B-2 to H-1B. With only 85,000 total positions available and companies submitting hundreds of thousands of entries, the odds can seem overwhelming.
Check out: Definitive guide to H-1B Chances
The only way to improve these chances is to secure a higher-paying wage level or acquire an advanced degree. USCIS will first pick 65,000 visas in the regular cap. If not selected in the regular cap, those with advanced degrees will be re-entered into the second round of 20,000 visas.
If you are approved, your status will change on October 1st. Continue reading below to learn how to maintain status during that time.
Labor Condition Application
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
B-1/B-2 to H-1B: How to Maintain Status
How can you maintain your non-immigrant status until October 1st? The key is to successfully obtain extensions of your B-2 or B-1 status until October 1st (for those who have not had H-1B status). You must apply before the expiration of the B-1/B-2, as per your I-94.
This apply for an extension, apply using Form I-539, Application to Extend/Change Nonimmigrant Status, to U.S. Citizenship and Immigration Services (USCIS).
You will also need to abide by all restrictions attached to the visa’s particular status, which means the individual will not be permitted to work until October 1st. If this is not possible, you should not apply for a change of status to H-1B within the United States.
If you are unable to maintain your status until October 1st, you will need to go through consular processing instead. This means returning to your country of origin and having your visa stamped at the local embassy/consulate. With the current regulations, your employer may be responsible for paying a $100,000 fee.
If you are selected in the 2026-2027 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.
H-1B Visa Stamping for B1/B2 Visa Holders
“B-2 to H-1B visa stamping,” as it is often referred to, 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 stamp 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.
How to Change Status From B-1/B-2 to H-1B
Transitioning from a B-1/B-2 visa to an H-1B is possible, but it requires careful planning and compliance with USCIS requirements. Here is the general process:
- Secure a U.S. Employer: You must find a willing U.S.-based employer who is willing to sponsor you for an H-1B visa.
- Enter The H-1B Lottery: Unless your employer is cap-exempt or you have been counted against the cap already, you are subject to the cap and therefore must enter the H-1B lottery. Registration typically opens in early March every year. 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.
- Employer submits the H-1B petition: If your registration is selected in the cap, that’s not the end of the road. The employer must submit a petition that will then be processed by the USCIS to determine if you and your employer truly meet the requirements for the H-1B visa.
- H-1B Approval: If approved, you will receive the approval notice (I-797 form), or if you were denied, you will need to explore alternative visa options.
- Maintain status or leave the country and re-enter: After you have received an H-1B visa, you cannot start working until October 1st of the applicable fiscal year. To avoid falling out of status, you must either maintain lawful B-1/B-2 status until then, or depart the U.S. and re-enter in valid H-1B status.
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Premium Processing and H-1B Fees
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 business days – this makes the H-1B a prime candidate, right?
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.
The employer is responsible for paying the H-1B visa fees:
|
Fee |
Amount |
Responsible for Fee |
|
$100,000 H-1B Supplemental Fee |
$100,000 - only for new H-1B petitions for beneficiaries outside the U.S. or those who require consular processing. |
Employer |
|
H-1B Lottery Registration Fee |
$215 |
Employer |
|
I-129 Petition Filing Fee |
$780 or $460 (small employers/nonprofits) |
Employer |
|
Public Law 114-113 Fee |
$4,000 (only if 50+ employees) |
Employer |
|
Premium Processing (optional) |
$2,965 |
Employer or Employee |
|
ACWIA Education and Training Fee |
$750 (less than 25 employees) $1,500 (more than 25 employees) |
Employer |
|
USCIS Anti-Fraud Fee |
$500 |
Employer |
|
Asylum Program Fee |
$600 (if 26+ employees) |
Employer |
|
Attorney Fee |
Variable |
Employer |
The process to apply for premium processing from your B-1/B-2 to H-1B is as follows:
- Submit I-907, Request for Premium Processing Service
- Submit I-129, Petition for a Nonimmigrant Worker, with I-797, Receipt Notice
B-1/B-2 to H-1B Change of Status Processing Time
The processing time to transition between a B-1/B-2 visa to an H-1B visa may take anywhere from 6 to 9 months. However, if you have been counted against the cap already, your employer can use premium processing and speed up a decision on the petition to 15 business days.
Understanding the 90-Day Rule
You must be careful when changing from B-1/B-2 to a work permit, like an H-1B, because you might find yourself in trouble with the U.S. Immigration Department. The main principle of the 90-day rule is your true intention of coming to the U.S. If you come to the country on either a B-1 or B-2 visa, you intend to visit the U.S. for a brief period of time. However, if, within your first 90 days in the country, you begin a process to apply for a permanent, work, or study visa, that will signal to the USCIS that you misrepresented your true intentions of coming to the U.S. in the first place.
Ex: If you come to the U.S. on a B-1 visa, which is designed for tourists, then apply for an H-1B visa within 4 days of entering the U.S., you are violating your immigrant intent. You were entering the U.S. as a tourist to enter and leave the U.S. during a certain period of time.
The rule was initially implemented in 2017 and served as a guideline to USCIS officers until 2019. At that time, the application of the rule was mandatory, and the process with which officers applied it was consistent and relatively regular. There is no mandatory requirement to apply the rule, but it has been applied arbitrarily. This means that some cases will be under strict scrutiny with respect to the rule, while others will not. At the moment, there is no consistency in the application of the 90-day rule. Thus, although if you apply for an H-1B visa while you are on a B-1 or B-2 visa within 90 days of arrival, you might not be subject to the rule, on the other hand, you might. It is advisable to stay on the safe side and apply for any new visas after the 90-day period.
The consequences of breaking the rule vary dramatically depending on your situation. In general, your new application could be rejected because you misled the officers as to your true intention of coming to the U.S. You may even be subject to a lifetime ban from entering the U.S. However, this is an extreme measure and would require additional breaches of U.S. laws or immigration regulations. It is important to note that you will always have an option to appeal the decision and present your case with additional evidence.
Conclusion
While the H-1B visa may have an issue date well in advance of October 1st, a beneficiary cannot enter the United States immediately following stamping. 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 B1/B-2 to H-1B as a transfer.” For clarity, the “H-1B visa transfer” refers to when an H-1B beneficiary changes jobs to a different employer. A change of status is what occurs when you transition from one visa category to another. So, when changing from a B-1/B-2 visa to an H-1B visa, it’s a change of status.