B-2 Option Following Loss of H1B Job Due to COVID-19 Crisis

The novel Coronavirus, COVID-19, has wreaked havoc across the world. On top of the hospitalizations and loss of life, the global economy is at a virtual standstill, resulting in a massive spike in unemployment. H1B workers have not been immune from this fallout. Given the ongoing pandemic, flying back to one’s home country following loss of employment may not be a viable option for the foreseeable future. If the H1B worker cannot find a new job, applying for a change of status (COS) to B-2 may be an option to remain in the United States for a period of time.

Possible to Apply for Change to B-2 Status During Grace Period

Ordinarily, if an H1B worker is terminated, that person may remain in the U.S. in valid status for 60 days, or until the I-94 expiration date, whichever date occurs first. The same grace period also, typically, applies to H-4 dependents. During this grace period, one may apply for a change to B-2 status. As long as the application is timely filed, the applicant typically may remain in the U.S. in a period of authorized stay while the application remains pending.

Nonimmigrant Intent & Financial Resources Requirements for B-2 Status Still Apply

The standard requirements to qualify for B-2 still apply, irrespective of the ongoing pandemic. Each applicant must have a residence abroad and demonstrate an intent to depart the U.S. at the end of the temporary stay. Further, the applicant must have adequate financial means to cover the cost of the stay while in the U.S.

The issue of demonstrating a residence abroad can be challenging for H1B workers, as many have been living in the U.S. for an extended period of time. Similarly, it is quite common for an H1B worker to have a pending or approved immigrant petition (form I-140) through a U.S. employer, which works against the argument that the applicant intends to remain in the United States temporarily. Still, given the ongoing pandemic, there are arguments that can be made regarding why B-2 status is warranted under the circumstances. These are issues that should be discussed with one’s attorney prior to filing the COS application.

Option to Apply Nunc Pro Tunc if Status Has Already Expired

As noted above, the grace period only applies if one’s I-94 is still valid. So, what is a foreign national to do if the individual is stuck in the U.S. due to the COVID-19 crisis with an expired I-94? One option may be to apply for a change of status nunc pro tunc (NPT). That is, to request that the U.S. Citizenship and Immigration Services (USCIS) grant B-2 status with a backdated I-94. This is a discretionary request that the USCIS reviews on a case-by-case basis. More details on how to qualify for this form of relief are available in the MurthyDotCom NewsBrief, Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S. (01.Feb.2018).

Returning to H1B Status May Require Overseas Travel

As previously mentioned, if the application to change to B-2 status is timely filed, the applicant normally remains in a period of authorized stay while the application remains pending. It can take the USCIS months to adjudicate I-539 applications, and the COVID-19 outbreak threatens to exasperate processing times.

If circumstances change – hopefully, based on the pandemic’s coming to an end – the applicant may wish to return to H1B status. If the change to B-2 has already been approved by then, as long as the B-2 I-94 is still valid, an employer typically could file a petition requesting a change back to H1B status.

If, however, the application to B-2 is still pending, the H1B change of status request could only be approved after the B-2 change of status application is adjudicated. This may not be a practical solution, given the lengthy processing times. In this scenario, the simplest solution may be for the H1B petition to be filed for consular notification. If approved, no new I-94 card would be issued, and the individual would need to return to the U.S. with a valid H1B visa “stamp.”

Overseas Travel Results in Abandonment of Pending COS Application

If the foreign national travels abroad while the COS is still pending, the application is deemed abandoned, but this typically would have no negative immigration consequences for the applicant. As long as the person was in valid status at the time the I-539 was filed, the person’s stay beyond the I-94 expiration date continues to be viewed as a period of authorized stay.

Conclusion

We are living through an unprecedented event, which has understandably caused immigration challenges for many foreign nationals in the U.S. Those seeking assistance are invited to contact the Murthy Law Firm to schedule a consultation with one of the knowledgeable and experienced attorneys.

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