H-1B to visitor visa route now riskier in US: Expert explains why

Rising RFEs and denials are creating fresh uncertainty for laid-off H-1B workers trying to remain lawfully in the United States

A growing number of H-1B workers in the United States are facing hurdles after losing their jobs and trying to remain legally in the country by switching to a visitor visa, according to immigration attorney Emily Neumann of Reddy Neumann Brown PC.

 

Now, authorities are taking a tougher view of this long-used pathway, creating fresh uncertainty for foreign workers and employers.

 

“We have seen a spike in Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and outright denials involving workers who filed timely applications to change from H-1B to B-1 or B-2 status after being laid off,” Neumann wrote in a post on X.

 

What is happening

 

When an H-1B employee loses their job, they generally have a 60-day grace period. During this window, many file Form I-539 to change to B-1 or B-2 visitor status so they can remain lawfully present while searching for a new role or preparing to leave the United States.

 

For years, this route was widely seen as compliant with publicly available guidance from US Citizenship and Immigration Services (USCIS). The guidance indicated:

 

> Terminated H-1B workers could apply for visitor status during the grace period

> Job searching and interviews were generally allowed on B-1 or B-2

> Actual employment in the US remained prohibited

 

Workers, companies and lawyers built their plans around this understanding. 

 

Why cases are now being challenged

 

Recent adjudications appear to be taking a stricter approach. According to immigration attorneys, some RFEs and denials now argue that:

 

> Job searching itself is not permitted on B-2

> Earlier USCIS web guidance is “archived” and not controlling

> Filing a later H-1B petition suggests the applicant lacked proper B-2 intent

 

This emerging pattern has raised concern among practitioners because it turns what was long treated as a compliance pathway into a potential immigration risk. 

 

What the law actually says

 

Under US immigration law, specifically INA 101(a)(15)(B), a B-category visitor is someone coming temporarily for business or pleasure and not to perform skilled or unskilled labour.

 

But Neumann drew a distinction between working and looking for work.

 

“In immigration law, intent is generally assessed at the time of filing. A later job offer or petition does not automatically invalidate earlier lawful intent, particularly because regulations explicitly allow overlapping or sequential filings such as I-539 and I-129,” she wrote.

 

Historically, the boundary has been understood as:

 

Permitted: Networking, attending interviews, exploring opportunities

Not permitted: Performing services or receiving wages in the US

 

Does a later H-1B filing show bad intent?

 

No, Neumann said.

 

“If this reasoning becomes standard practice, it could discourage workers from following formal processes and create compliance dilemmas,” she wrote on X.

 

What workers and employers should do now

 

Foreign nationals considering a shift to B-1 or B-2 after job loss should be prepared to document:

 

Temporary purpose of stay

No unauthorised employment

Financial self-sufficiency

Ties to residence abroad

 

Meanwhile, immigration attorney Rebecca Chen wrote in a blog post recently that gaps in reporting, unclear employment histories or weak documentation can trigger delays, RFEs or denials.

 

She said issues once treated as minor can now affect whether a worker can remain in the United States without moving to consular processing.