Many people find it difficult to secure an H-1B sponsor from abroad. They often inquire as to how they can transfer their visa status from B-1 or B-2 to H-1B while being present in the U.S. B-1 and B-2 visas are nonimmigrant visas that are provided to foreigners wanting to come to the U.S. on a short term basis such as business, tourism, or medical treatment which is usually for 3 to 6 months.
What Are B-1 And B-2 Visas?
A B-1 visa is a temporary business visitor visa. This visa is issued to people who are taking part in commercial or professional business activity. Whereas a B-2 visa is a temporary visa given to people who want to temporarily come to the U.S for a vacation or for leisure.
Currently, an individual is allowed to stay in the U.S. on any one trip for a maximum of 1 year, including the period for visa extension. Compared to the initial application for B-1 and B-2 visas, it is hard to obtain extensions of up to 1 year and requires comprehensive and detailed paperwork.
B-1 and B-2 visa bearers are not permitted to apply for any job within the U.S. They also cannot earn credit for any studies completed in the country. But, they can have an employer file a petition for them to shift to H-1B status if the conditions are fulfilled.
Requirements For An H-1B Visa
There are several advantages of having an H-1B visa. Comparatively, it has fewer requirements which can easily be fulfilled. Plus this visa is highly portable and you can stay for up to six years in the U.S. including extensions. Portability refers to the ability to work full or part-time, working for multiple employers at the same time and the ability to switch jobs.
Other conditions are as follows:
- You must have a job invitation from a U.S.-based employer for a ‘Speciality’ position
- You must at least have a bachelor’s degree that is needed for your position
The important thing to know is that you must prove that you and your employer have a legitimate employer-employee relationship, which means that you cannot be your own employer and file an application for yourself. Additionally, you must make it clear that your job position is deemed as a ‘Specialty Occupation’ which requires your degree.
Although an individual can change their status from B-2 to H-1B, there is still a possibility that there could be some issues which are as follows:
Firstly, if there is no availability of an H-1B visa, the candidate will have to wait until the April of the following year for the H-1B lottery process and will need to have an employer petition for them. Usually, the lottery process begins on April 1 of every year and lasts for about one week.
Generally, this issue does not apply if a cap-exempt employer/establishment is filing the application or if the candidate has previously been on H-1B status. The candidate seeking H-1B status should ask about their potential H-1B employer or a qualified immigration lawyer to be sure about whether the employer is cap-exempt.
Secondly, if eventually the application for H-1B is selected in the lottery and gets accepted, the H-1B status will only be applicable and start from October 1st of the same year. So, to apply for a status change from B-2 and B-1 to H-1B, the candidate will have to maintain status from the time they first enter the U.S. until October 1.
Hence, if you are submitting an application for a cap subject, your employer will have to file the petition on April 1, and you cannot start work as an H-1B employee until October 1.
Also, your U.S. employer should first acquire a Labor Condition Application on your behalf. This means that your employer must make sure to fulfill and verify some important steps, which are as follows:
- Your employer must confirm that you will be paid the hourly wage with benefits according to the prevailing wage of your position in the geographic area of the job
- Your employer must verify that employing you will not negatively affect the working conditions of the current employees
- The present employees have been informed of the reason to hire you
- There is no lockout or strike taking place at the place of work
Now let’s discuss the annual H-1B lottery. The lottery can become a significant hurdle in your effort to change your status from B-1/B-2 to H-1B. In total, there are only 85,000 positions available, and 20,000 of those are reserved for candidates that have advanced degrees. Since more than 200,000 people have applied over the years, it can feel quite overwhelming.
The only way to increase your chances of getting selected is to have an advanced degree. Firstly, the USCIS will choose those 20,000 based on the criteria of having a master’s or a higher degree. After this, those with advanced degrees that are not picked will be re-entered into the lottery to be chosen for the regular quota of 65,000.
Even if your application is selected within the limit, there are more steps to follow. Your application will then be analyzed by the USCIS to decide if you and your employer genuinely meet the conditions for the H-1B visa. If your application gets approved, your status will be changed from October 1 of that year.
How To Maintain Status For Your B-1 And B-2 Visas
Until the start of their H-1B status, the candidate will have to get extensions for their B-2 or B-1 status until October 1 of that year. As per I-94, they will have to apply for a change of status before the expiration of the B-1 or B-2.
They will also have to follow all restrictions attached to their specific status, meaning that the candidate will not be allowed to work until October 1. If the candidate cannot fulfill these conditions, then they should not apply for a change of status to H-1B within the U.S.
If the candidate is not able to maintain their status until October 1, which is the date for the H-1B status to become active, the application for H-1B will have to be filed with consular processing. Meaning that if the candidate has secured a job in the United States while their B-1 or B-2 status is valid but cannot maintain it till October 1, they should exit the country before the termination of their B-1 or B-2 status.
Then, the sponsoring employer will submit the application during the H-1B lottery with the candidate abroad and make a request that the candidate should be allowed to re-enter the country at a later time.
If the application is chosen and approved in the lottery, the candidate must go for an H-1B visa stamping before coming to the United States on H-1B status.
Stamping of ‘B-2 to H-1B visa’
Stamping of ‘B-2 to H-1B visa’ should have taken place before October 1, which is the start date of the H-1B status. International nationals are allowed to have more than one valid visa in their passport at a time.
Usually, the counselor officials will not cancel the B-1, or B-2 visa from the existing passport as having a visitor visa does not conflict with many other non-immigrant visa statuses. So, B-1 and B-2 visas do not need to be canceled to get the H-1B stamping.
Stamping for H-1B requires different documentation than stamping for B-1 or B-2 and permits different entry dates. Some essential documents required for the H-1B stamping include a resume, Form I-129, certified Labor Condition Application, a valid passport, Petitioner’s support letter, academic evaluation, degree and transcripts, and work experience letters.
Premium processing is an optional service that speeds up the processing time of visa applications and green cards filed through Form I-129 and Form I-140 to 15 days.
Since H-1B has strict dates for submitting applications and starting work, premium processing might not be an ideal choice to change your status from B-1/B-2 to H-1B. Get the help of an immigration attorney to see if this route is appropriate for your individual case.
Mostly, the employer would be responsible to pay the fees for an H-1B visa, and the employee might have to pay some charges. The fee for H-1B Premium Processing for H-1B is divided into a few categories, which are as follows:
- Charges for H-1B Premium Processing Service – $1,440
- Charges for Fraud Prevention and Detection – $500
- Charges for I-129 Petition Filing– $460
- Charges for Public Law 114 – 113 – $4,000. This applies to organizations that have over 50 employees, with more than half of them on H-1B or L-1 status.
The procedure to apply for premium processing from your B-1/B-2 to H-1B is as follows:
- File Form I-907 – Request for Premium Processing Service
- File Form I-129 – Petition for a Nonimmigrant Worker, along with I-797 – Receipt Notice
When changing status from B-1/B-2 to a work permit like H-1B, you must be mindful. The main reason for the 90-day rule is your true purpose of coming to the U.S. If you enter the U.S. on either a B-1 or B-2 visa, your intention was to visit the U.S. for a short period of time. But, if, during your first 90 days in the country, you apply for a permanent, work, or study visa, that will be an indication to the U.S. Citizenship and Immigration Services that you falsified your true plans of coming to the U.S.
Initially, the rule was implemented in 2017 until 2019. During its implementation, it provided a guideline to USCIS officers. The implementation of the rule was compulsory at that time and the officers applied it in a consistent and relatively regular manner. After 2019, the USCIS is not required to implement this rule on a compulsory basis but has been applying it randomly.
Meaning that for some cases, this rule might not be implemented, but some cases could be processed with strict scrutiny. Presently, there is no regularity in the implementation of the 90-day rule. So, during your first 90 days, even if you apply for an H-1B visa while you are on B-1 or B-2, you might not be subjected to this rule, but there is a possibility that you could be. This is why it is suggested that you may apply for any new visas after the 90-day period passes to be on the safe side.
The consequences of not following the 90-day rule differ significantly. Generally, your new application could be declined because you deceived the officials about your true plans for coming to the U.S. You could even be banned from coming to the U.S. for a lifetime; but, this is an extreme step and would require more violations of U.S. laws or immigration regulations to be implemented. It is important to keep in mind that you will always have the chance to make an appeal against the decision and present your case with additional proof.
So, What Is The Overall Conclusion?
Some people incorrectly refer to the process of B-2 to H-1B or B-1 to H-1B as a ‘B-2 to H-1B visa transfer.’ To be clear, the ‘H-1B visa transfer’ process means the time when an H-1B candidate changes jobs to another H-1B employer. However, this is a bit of an error because, during the changing process, nothing is transferred.
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