B-1/B-2 to H-1B Change of Status

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. On this page, you will learn how to change your B-1 or B-2 visa to a work permit or a dual-intent visa like the H-1B. You will also learn about premium processing and possible issues of converting from B-1/B-2 to H-1B 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 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 convert 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 1^st 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 1^st 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 1^st.

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 1^st. 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 1^st. 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 1^st 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 to, should occur in advance of the H-1B start date of October 1^st. 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

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 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.

Traditionally, the employer would pay the H-1B visa fees and the employee might be responsible for some charges. Premium processing fee for H-1B visa is split into a few categories:

• H-1B Premium Processing Service fee – $1,440
• Fraud Prevention and Detection fee – $500
• I-129 Petition Filing Fee – $460
• Public Law 114 – 113 Fee: $4,000 (This is applicable to organizations that have upwards of 50 employees with more than half of H-1B or L-1 status).

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

Possible Issues With Changing B-1/B-2 to H-1B Work Permit: The 90-Day Rule

You must be careful when changing from B-1/B-2 to a work permit like 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, your intent is 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. 

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. After 2019, the USCIS is not under the mandatory requirement to apply the rule, but it has been applying it 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 B-1 or B-2 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 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.

B-1/B-2 to H1B: Conclusion

While the H-1B visa may have an issue date well in advance of October 1^st, 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 1^st 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.