H-1B workers who lose their jobs have sometimes followed the strategy of filing a Form I-539 application to change status from H-1B to visitor status (B-1/B-2) within the 60-day grace period following termination. The goal of that approach is to allow terminated H-1B workers sufficient time to interview with potential employment leads, secure new employment, and transition back to H-1B status, without departing from the United States. For many years, this strategy was widely accepted, and was supported by published U.S. Citizenship and Immigration Services (USCIS) guidance, upon which workers, employers, and immigration counsel alike relied.

In recent months, however, stakeholders have observed a policy shift regarding this strategy, with increasing frequency of Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and, in some cases, denials targeting this approach. Affected workers and their employers should be aware that this approach now carries risks that were not previously associated with it.

What Changed

USCIS previously maintained a guidance page titled, “Options for Nonimmigrant Workers Following Termination of Employment,” which stated that job searching and attending interviews are permissible B-1/B-2 activities. As of March 31, 2026, the guidance page has been archived. Adjudicators have taken the position that the guidance on the archived page is no longer current and does not control their decisions.

As a result, job searches are being characterized in some adjunctions as an impermissible primary purpose of U.S. presence. With respect to B-2 nonimmigrant visitor for pleasure, USCIS has reasoned that an open-ended job search does not fit the definition of a temporary visit for pleasure. Requests for a maximum 180-day stay in visitor status have also been challenged as excessive, where the stated rationale involves concluding personal affairs or exploring employment opportunities.

RFEs have increasingly asserted that searching for work, attending interviews, and accepting employment are activities inconsistent with B-1/B-2 classification. In addition, USCIS has — in some cases — used a subsequent H-1B petition filed by a new employer on behalf of a foreign national who previously filed a change of status application as evidence that the foreign national misrepresented intent at the time of that earlier filing. In other words, USCIS has in recent cases argued that the subsequent H-1B filing demonstrates the foreign national never intended a visitor stay, treating changed circumstances as evidence of original preconceived intent.

The Statutory and Regulatory Framework

These developments reflect a change in USCIS policy, rather than the underlying law. The controlling statute, the Immigration and Nationality Act (INA) Section 101(a)(15)(B), defines B-1/B-2 nonimmigrant status as temporary visits for business or pleasure, respectively, and prohibits admission for the purpose of performing skilled or unskilled labor, rather than business meetings such as job interviews, or review, consideration, or acceptance of job offers. The regulatory framework reflects the same distinction. The text of the INA and relevant regulations have not changed. What has changed is USCIS adjudicatory practice. Accordingly, applicants should be prepared to present clear legal arguments establishing eligibility for the requested change of status at the time of initial filing, in anticipation of RFEs or other requests consistent with this shift.

The 60-Day Grace Period

The 60-day grace period available to foreign national workers following termination of H-1B employment does not guarantee approval of a change of status application. The grace period permits a terminated H-1B worker’s new employer to file a change of employer H-1B amendment in country or for the foreign national to file a change of visa status application with USCIS, likewise without departing. Filing a Form I-539 within the 60-day grace period preserves authorized stay in the U.S. while the application is pending, but it does not guarantee approval of the requested benefit.

If the I-539 is ultimately denied after the grace period has expired, the worker may be treated as having fallen out of status. Unlawful presence would then begin to accrue, with consequences for future immigration benefit requests, admissibility, and reentry. Based on the recent changes, a timely filing alone does not insulate an applicant from the risks described above.

Potential Cost Implications for Employers

Employers seeking to hire H-1B workers who previously faced termination and filed a B-1 or B-2 change of status, which was later denied, may face financial risk.

If such a change of status application is denied, the worker would be required to depart the United States and seek a visa at a U.S. embassy or consulate in the country of their nationality or most recent residence. Under the Presidential Proclamation that took effect in Sept. 2025, certain new H-1B petitions involving consular processing are subject to a $100,000 fee, depending on employer size and circumstances.

Considerations for Workers and Employers

Terminated H-1B workers may still file for a B-1/B-2 change of status within the 60-day grace period, and USCIS continues to approve some requests. However, the added layer of due diligence requires that these filings should be constructed with the current adjudication landscape in mind. The application should reflect legitimate, temporary purposes with clear endpoints, including concrete evidence of the intended temporary nature of the stay, and ties to the country of nationality or last residence. Job searches and interviews should not be identified as the stated primary purpose, even if those activities may occur incidentally to the temporary stay.

Where USCIS questions whether a job search was the primary purpose of an intended stay, a response that addresses the intent question directly, reframes the stated purpose around permissible activities, and provides concrete supporting documentation may support the application process.

When building their hiring timelines, employers may wish to consider the possibility of delays resulting from RFEs, NOIDs, or other USCIS action. Additionally, employers should consider including contingency plans addressing the possibility of denial — such as the potential for an overseas assignment. This shift in USCIS adjudication means that neither workers nor employers should treat this strategy as a reliable or guaranteed bridge for continued U.S. presence and quick processing of H-1B petitions.