USCIS Prioritizing Pending B-1/B-2 Applications for Laid Off Workers Who Find New Employment

The U.S. Citizenship and Immigration Service (USCIS) has provided a possible mechanism for certain laid off nonimmigrant workers who have pending B-1 or B-2 (B-1/B-2) applications to regain work visa status. More specifically, if the nonimmigrant worker has a pending application to change status to B-1/B-2, and then finds a new prospective employer who files an I-129 petition for the individual with premium processing, requesting a change back to status as a nonimmigrant worker (e.g., H1B), the USCIS typically will prioritize the adjudication of the B-1/B-2, so that the I-129 can then be promptly adjudicated, without having to wait an additional amount of time for a decision on the B-1/B-2 change of status application.

Background

When a nonimmigrant worker is terminated before expiration of the approved status, the law generally provides a grace period until the earlier of the I-94 expiration date or for up to 60 days after job termination, for the individual to remain in valid nonimmigrant status. During the grace period, a new employer may file a nonimmigrant petition to enable the foreign national to stay and continue working in the United States. If the individual is not able to obtain another job offer during the grace period, or a prospective employer is not able to file an I-129 petition within the grace period, the foreign national can also file an application to change to another status.

Problems Resulting from Lengthy Processing Times for B-1/B-2 Applications

If the foreign national is not able to secure new employment before the end of the grace period, one way to extend one’s stay in the U.S. is to file an I-539 requesting a change of status to B-1 or B-2 status before one’s grace period has ended. The USCIS, however, may take months to adjudicate an application to change status to B-1/B-2. Based on the timely filed application, the individual generally may remain in the U.S. in a period of authorized stay while the application is pending. This “authorized stay,” however, is not the same as valid status.

If the individual finds a new job during this period, the employer typically may file an I-129 for the individual requesting a change of status to a nonimmigrant worker status, such as H1B. However, in this situation, the USCIS ordinarily will not approve the I-129 change-of-status request until the B-1/B-2 application is approved.

In the past, due to the lengthy adjudication timeline for B-1/B-2 change-of-status applications, the foreign national and prospective employer were left with few options. One solution would be to file the I-129 petition for consular notification, meaning that the foreign national would have to leave the United States and then return with the approved petition and valid visa “stamp.”

Revised Policy to Expedite Processing of B-1/B-2 Applications

As explained by the USCIS, when a terminated nonimmigrant worker has a pending I-539 application for change of status to B-1/B-2 filed during the 60-day grace period, and an employer has filed an I-129 petition on behalf of the worker requesting premium processing service, the USCIS generally prioritizes the I-539 application by processing the application within the premium processing window and issues concurrent decisions on the I-539 application and the I-129 petition. That way, the individual can continue to stay in the U.S. and obtain nonimmigrant worker status to begin working for the new employer. This policy and process change in adjudication of B-1/B-2 change-of-status applications in this circumstance will serve to alleviate much of the stress and anxiety experienced by nonimmigrant workers and their families faced with unanticipated termination of employment.

USCIS to “Generally” Apply Policy

It is not clear whether the USCIS will employ the same process in all similar circumstances. The USCIS does include the qualifier “generally,” saying, “USCIS will generally process the pending I-539 and I-129 together during the premium processing timeframe and issue concurrent decisions.” The USCIS is thus allowing itself discretion in determining whether to employ this adjudicatory priority for each case.

Conclusion

The USCIS announcement to generally expedite I-539 applications to allow nonimmigrants to regain work-authorized status is a welcome policy change. Whether the USCIS will employ this practice in every case remains to be seen.

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