USCIS Shortchanging Some B-1/B-2 Change-of-Status Applicants

Recently, attorneys at the Murthy Law Firm have noticed a troubling trend by the U.S. Citizenship and Immigration Services (USCIS), related to the adjudication of some I-539 applications to change status to B-1 or B-2 filed by H1B workers during their respective 60-day grace periods. Rather than granting these applicants the full six months requested, starting from the end the of applicant’s grace period, the USCIS is sporadically approving some of these applications for six months from the last date of employment, in some cases shortchanging them by two months or longer.

Background

In December 2022 the USCIS posted a helpful notice regarding options for nonimmigrant workers following termination of employment. One of the options indicated that a laid-off worker is eligible to apply for a change of status to B-1/B-2 during the grace period to remain in the United States to continue seeking employment or wind up one’s affairs before departing the U.S.

Shortened I-94 Cards Could Cause Complications

Generally, the maximum period of stay that can be requested for B-1/B-2 status is six months. Therefore, standard practice is to request that the change of status be granted for six months, starting from the end of an applicant’s grace period.

In most cases, including those filed in recent months, the USCIS has been approving these applications for the full six months, starting from the end of the applicant’s grace period. However, for a small, yet not insignificant number of cases, the Murthy Law Firm has noticed that the USCIS is issuing B-1/B-2 change-of-status approvals with an end date calculated six months from the applicant’s last date of employment, even though most of such applications are filed during the applicant’s grace period. Consequently, the applicant is in fact approved for four months of B-2 status from the end of the grace period, rather than the anticipated six-month duration.

While the difference between a four-month approval and a six-month approval may seem relatively insignificant, this difference can result in some weighty consequences. In some cases, we have seen such truncated approval notices issued immediately before the end date, leaving the applicant in jeopardy of falling out of status. In a few cases, we have even seen approvals issued with an end date that had already passed by the time it was issued by the USCIS. This can result in serious immigration consequences for foreign nationals.

Conclusion

As previously noted, it seems that the USCIS is properly approving most of these applications for the full six months. However, the Murthy Law Firm urges the USCIS to be consistent in its adjudication of all such cases. Applications that warrant approval should not be arbitrarily limited based on the last date of employment. Rather, the grace period should be taken into consideration, along with the start and end date requested in the I-539 application. This will help the applicant and any family members, to tide them over at a very difficult time, with a job loss and the need for additional time to either find new employment or return to one’s home country.

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