H1B Layoff | Should You Change H1B to F1 or B2

1. H1B Visa 

1.1 What is H1B Visa

The H1B visa is a non-immigrant visa for foreigners working in specialized occupations for U.S.-based employers. These occupations are listed under USCIS (U.S. Citizenship and Immigration Services). Three things you need to know about working on H1B visa:

1. Employer-specific: The H1B visa is tied to the employer who sponsored it, meaning the visa holder's legal status and ability to work depend on their continued employment with that company. To change jobs, the H1B holder must undergo a transfer process, where the new employer submits a fresh H1B petition to USCIS. The transfer must be approved before starting work with the new employer, ensuring compliance with immigration laws.

2. Maximum duration of 6 years: The H1B visa offers foreign workers an initial stay of 3 years, which can be extended to an additional 3 years. When an H1B visa holder reaches the six-year limit, extensions are only possible if they are in the green card application process. If the green card process reaches the PERM stage, the H1B can be extended for one year. If it progresses to the I-140 stage, the H1B can be extended for three years. However, if the H1B is about to max out with no progress on PERM, the visa holder can change their status from H1B to F1 and use Day 1 CPT to work. Once the PERM is approved, they can switch back from F1 to H1B and extend their stay.

3. 60-day grace period: Once the H1B employment is terminated, either being laid off or quit the job voluntarily, H1B holders will have a 60-day grace period, during which they can stay unemployed. If you can't find a job within 60 days, your options include consider changing your H1B to F1 or B2 status to safeguard your legal status.

2. H1B Grace Period After Layoff

2.1 Seven Questions You Need to Know about Grace Period

• When does the grace period begin?

The H1B grace period begins immediately upon the termination of your employment, so you don’t need to file an application for it. The grace period starts from your employment termination date. According to the official statement of USCIS, the work termination date is typically indicated by the final pay statement. 

If you are laid off with a severance pay period, there are ways to maximize your H1B grace period even if you stop working for the employers . You may also try to negotiate with your employer to decide the last day of your pay stub. 

However, instead of presuming your employment end date, it is advisable to communicate with your employer to clarify the accurate date and talk with a lawyer. You might or might not qualify for additional days based on individual circumstances. 

• Can I use the H1B grace period multiple times?

The 60-day grace period can be utilized once per H-1B approval. This means that if your H1B transferred to a new company and subsequently get laid off, you will be granted another complete 60-day grace period.

For example, If you work at Company A, and then get laid off, after 30 days you find a new job at Company B. You work at Company B for some time and then get laid off again. At this point, you have a complete 60-day grace period, and the previous 30-day grace period from Company A will not be counted towards it.

Moreover, if you switch to a different status (e.g. B2 or F1) and then later return to H1B, you will receive a new H1B instead of H1B transfer, which means you will also get a full new 60-day grace period with your new H1B visa.

• Can I change my status during the grace period?

Yes, your H1B status is still valid during the grace period, so you can file an application for change of status. Once you file your application, you will enter a pending period, during which you are legally permitted to stay in the U.S.

• What if my H1B expires before the end of my grace period?

In this situation, your grace period will be shortened to match your H1B expiration date. For example, if your grace period start date is May 1, while your H1B end date is May 31, then you will only have a 31-day grace period, which ends on May 31. 

You can check the H1B expiration date on your I-94 document.

• Can I work during the grace period?

No, it is prohibited to engage in any form of employment during the grace period unless you transfer your H1B to the new employer. Also, you are not allowed to start your business to hire yourself during this time. 

• Can I travel internationally during the grace period?

No. If you leave the U.S. during the grace period, your grace period will end immediately. It is wise to suspend any plans for international travels during the period. 

• Can my H4 spouse work with H-4 EAD during my H1B grace period?

Yes, in most cases, your spouse can use the H-4 EAD to work during your grace period. 

The H4 holders status is dependent on the H1B holder. As mentioned, your H1B status remains valid during the grace period, which means the status of your H4 dependent also remains valid during this period. However, if your grace period is denied, your H4 dependent will lose his/her right to work immediately.

2.2 Three Ways to Extend Your Grace Period

Here is a clear post about "3 ways to extend your grace period after H1B layoff":

Being laid off on an H1B visa can be incredibly stressful, as you only have a 60-day grace period to find new employment or change your status. However, there are three ways you can try to negotiate with your employer that can potentially extend this grace period and buy yourself more time:

1. Negotiate Severance Terms: Like mentioned previously, many companies offer severance packages that can provide crucial visa support. If you receive a severance, actively communicate with your employer to see if it can be paid out as normal wages on your paystub rather than a lump sum "severance pay." This way, USCIS will consider you still on payroll, delaying the start of your grace period. 
2. Negotiate Unpaid Leave: If your company doesn't offer severance, you may be able to negotiate unpaid leave before your termination date. This allows you to formally remain an employee without receiving pay, potentially pushing back when your 60-day grace period begins. Give your employer as much notice as possible before your last day to discuss this option.
3. Leverage FMLA Benefits: The Family and Medical Leave Act provides up to 12 weeks of unpaid, job-protected leave if your company has over 50 employees. Although not a guarantee, you can inquire about using FMLA to extend your status as an active employee and delay your grace period accordingly.

It's challenging to have a difficult conversation like negotiating grace period with your employer after being laid off, if you are not confident in your communicating skills, check out this communication template you can use. 

While there are no perfect solutions, proactively discussing these options with your employer gives you the best chance to extend your stay and have more time to find a new H1B sponsor or pursue other visa pathways. Clear communication and utilizing all available benefits is key when facing this difficult situation.

3. Your Options After H1B Layoff

3.1 Option 1: Leave the US

When an H1B visa holder is laid off, one option they may consider is leaving the United States and returning to their home country to find a new job overseas. This approach can help alleviate the 60-day grace period pressure of finding a new job in the US. By returning to their home country, they can interview for and secure a job offer, then initiate an H1B transfer to re-enter the US with the new employer.

This is a less common choice because if you opt to find work abroad and are uncertain when you can return to the US, you'll need to handle your existing rental, possessions, and other affairs in the country. Additionally, job hunting overseas presents challenges like time zone differences, making the process more difficult.

In the current economic downturn, finding a new job is increasingly challenging. If you remain outside the US for an extended period while unemployed and seeking entry, you risk being denied a B visitor visa at the embassy. The more likely path would be to enroll in a US educational program on an F1 student visa, though this route is more complicated.

3.2 Option 2: Find a New Job Within 60 Days

When an H1B visa holder faces a layoff, one viable option is to remain in the United States during the 60-day grace period and secure a new H1B sponsor within that timeframe. This allows the individual to legally extend their stay in the country.

The key steps involved are:

1. Utilize 60-Day Grace Period After employment termination, H1B workers have a 60-day grace period to find a new employer willing to sponsor their H1B visa transfer.
2. File New Labor Condition Application (LCA) The prospective new H1B employer must file an LCA with the Department of Labor before the 60-day period expires.
3. Receive USCIS Receipt Confirmation As long as you receive a receipt confirmation from USCIS for the H1B transfer petition before the 60-day grace period ends, you can legally remain in the US while the transfer case is processed.

By taking this route, laid-off H1B visa holders can avoid the hassles of leaving the country immediately after job loss. They can continue their job search and transfer to a new employer, all while maintaining legal status within the United States.

3.3 Option 3: Change to Other Visa Status

In the current economic climate, layoffs are prevalent, making it challenging to secure a new H1B sponsoring employer within the 60-day grace period. Under such circumstances, changing from an H1B visa to another non-immigration status is a common approach to maintaining legal status in the US. Changing from H1B to F1 status or to B2 status are among the most frequent transitions for laid-off H1B workers.

 When deciding between F1 and B2 visas, it is important to understand the natures of both visas as well as their restrictions. 

4. Change Your H1B Status

4.1 Should I Change H1B to F1 or B2?

4.1 H1B to F1 vs. H1B to B2 Comparison 

If you are laid off while on an H1B visa, should you switch to an F1 or a B2 visa?

4.2 Four Factors to Decide Changing H1B to F1 or B2

If you're laid off while on an H1B visa, deciding between switching to an F1 student visa or a B2 tourist visa requires careful consideration of several factors:

1. Job Prospects: If you're optimistic about finding a job within about six months, despite economic challenges and increased competition, a B2 visa may suit you better. This option is viable if you anticipate a swift return to employment. On the other hand, if you foresee difficulties in securing a job that supports H1B transfer or if you aim for a longer-term stay in the U.S., consider switching to an F1 visa.

2. Grace Period: Evaluate the remaining time in your grace period. If you have less than 2 weeks left, changing to a B2 status is more feasible due to time constraints. Changing to an F1 status requires obtaining an admission offer and I-20 form from a school, which can take time. However, if your grace period exceeds three weeks, changing to an F1 visa is possible, and contact us! We can assist in obtaining the documents fast in 2 weeks!

3. Cost Considerations: As you can see int he cost breakdown chart above, switching to an F1 status involves additional costs compared to a B2 visa. For a Day 1 CPT university, you're only required to pay the first semester's tuition as opposed to the whole program or annual tuition fees, the tuition fees for one semester is typically between $2,000 and $5,000.

4. Green Card Process: If you've already filed an I-140 as part of your green card application, opting for a F1 status is recommended. Although F1 visa doesn't allow immigration intent you can justify that you are aiming for higher education, while the B2 visa as a visitor visa does not permit immigrant intent either, and it's challenging to justify your change of status purpose. We've helped clients with filed I-140 successfully change to F1 status. Contact us to learn more!

4.3 Why Changing H1B to F1 Could Be a Better Option

Reason 1: Stability and Time for Job Searching Changing to F1 status offers a more stable and extended period for job searching compared to B2 status, which only allows a stay of up to six months. With the current economic climate and frequent layoffs, finding full-time employment within six months can be challenging. Most Day 1 CPT programs with F1 status range from 2 to 5 years, providing a longer time frame to secure a job. If employment is found, the program can be paused or withdrawn easily. In contrast, if B2 status doesn't lead to employment within six months, options are limited and an extension request may not be approved.

Reason 2: Work Flexibility and Resume Continuity H1B visa regulations restrict contract or part-time work and involve a complex transfer process for new sponsorships. F1 status, with Day 1 CPT work authorization, allows for contractor or part-time employment, maintaining income and preventing resume gaps. This flexibility also enables working immediately while studying for an advanced degree, enhancing career prospects without waiting for an H1B transfer.

Reason 3: Faster Processing and Easier Justification Changing to B2 status can take 3 to 8 months without premium processing, whereas F1 status change can be expedited with premium processing, ensuring a decision within 30 days. Justifying a change to F1 is straightforward, focusing on skill and knowledge enhancement. In contrast, justifying a change to B2, a visitor visa for leisure, requires a more cautious approach.

Reason 4: Green Card Application Considerations For those with an approved I-140 in the green card process, changing from H1B to F1 is easier to justify than B2. The F1 visa as a student visa aligns with the intent to pursue higher education, whereas B2 is for leisure purposes, complicating justification with an approved I-140. GoElite, in partnership with experienced immigration attorneys, has successfully assisted clients in transitioning from H1B to F1 status in these situations. Contact us to learn more about tailored assistance for your case.

5. How to Change from H1B to F1 - Step by Step Guide

5.1 Five Steps for Changing from H1B to F1

Check out our guide on Step-by-Step Process of Changing H1B to F1 at Westcliff University

5.2 What Kind of Universities/Programs Can You Choose

If you're considering a transition to F-1 status, there are 4 types of programs you can choose from.

• Traditional Master's Degree Programs: These are full-time graduate programs offered by universities and colleges. They typically have fixed enrollment window, and require a substantial course load and can take 1-2 years to complete, depending on the field of study.
• Day 1 CPT Programs: These programs allow international students to engage in practical training related to their field of study. Some schools offer "Day 1 CPT" programs, which allow you to use CPT and have full time or part time job to gain income and fill in career gap (no H1B transfer is needed). Contact us and get the full list of Day 1 CPT Universities!
• English Language Programs: Some universities and city colleges offer intensive English language programs for international students who want to improve their English proficiency before pursuing a degree program. However, choosing these programs might put you at risk, as USCIS may question why you choose to pursue a language program if you already have a degree and working experience in the United States, making it harder to justify your intention.
• Community Colleges: Attending community colleges is ideal for those without a U.S. degree, as they are more affordable and have lower academic pressure. However, community colleges don't offer full-time CPT, limiting work experience opportunities, and the admission process takes about a month, which might not be suitable if you need to change your status quickly.

Check out our blog post to get a comprehensive understanding of the pros and cons of the four options.

While all of these options are viable, Day 1 CPT programs may be the most attractive choice for those transitioning from H1B to F1 status. 

• Immediate Employment: Day 1 CPT schools allow F1 students to use CPT for full-time or part-time employment, on-campus or off-campus jobs, starting from their very first day of studies. Most traditional schools require F1 students to complete one academic year before becoming eligible for CPT, and during semesters they can only work up to 20 hours per week, with 40 hours allowed during breaks. Day 1 CPT schools provide F1 students more opportunities to work, gain experience, earn income to reduce financial pressures right from the start of their program.
• Affordable Tuition: Day 1 CPT programs typically have lower tuition fees compared to traditional degree programs, making them a more cost-effective option.
• Flexibility: Many Day 1 CPT schools have multiple enrollment windows throughout the year, allowing for a quicker transition from H-1B to F1 status.
• Streamlined Admission Process: The admission process for Day 1 CPT programs is often more straightforward and quicker than traditional degree programs, enabling you to obtain the required documentation for your F-1 visa application faster.
• Lower Course Load: Day 1 CPT programs generally have a lighter course load compared to traditional master's programs, allowing you to balance your studies with practical training or other commitments.
• Legitimacy: Day 1 CPT programs are recognized by the USCIS as a legitimate path to F-1 status, reducing the likelihood of your intent being questioned during future green card or visa change processes.

Therefore, Day 1 CPT schools provide a more direct and focused path to maintaining legal status in the United States while gaining practical experience in your field.

Not all Day 1 CPT universities can take change of status application. Check out our blog post "Top 5 Day 1 CPT Universities for Changing Your Status to F1" to learn about your Day 1 CPT options.

Note: If you are looking for jobs while holding a Day 1 CPT, you can share with your employer that you have Day 1 CPT which allows you to start working right away, without having to wait up to 2 months for an H1B transfer approval. Since you already have an H1B visa, you don't need to go through the lottery process again. You can start working first, and then your employer can assist with transferring your H-1B visa afterwards. This two-pronged approach allows you more flexibility in your employment.

Looking to enroll in a Day 1 CPT school? Contact us for free help!

5.3 Required Documents for Changing from H1B to F1

• Copy of the I-20 form with your signature on the Student Attestation section. This form is issued by the school you’ve been accepted into and indicates the duration of your program and the department in which you’ll be enrolled.
• The completed Form I-539 for the application to extend/change nonimmigrant status, along with a filing fee ($420 for online filing; $470 for paper filing, effective April, 2024) payable to the Department of Homeland Security.
• An explanation letter.
• Receipt of the I-901 SEVIS fee, which is $350.
• A financial statement demonstrating that you will be able to financially support your studies throughout the duration of your studies.
• Copies of passport and visa.
• Copy of Form I94, which indicates your arrival in and intended departure from the US.
• Copy of all prior H1B approvals.
• Copy of last three pay statements

* Beginning Oct. 1, 2023, the $85 biometric fee is no longer required.

5.4 Processing Time

The processing time typically ranges from 3 to 8 months, depending on individual situations. It is highly recommended to collaborate with your school’s DSOs when planning your change of status application timeline. Avoid traveling abroad while your application is pending, as it might complicate your case.

Premium processing is available for changing from H1B to F1. Premium processing guarantees responses from the USCIS within 30 calendar days once all required materials are submitted. If the gap between your application and the F1 program start date is too short, you can consider using premium processing to expedite the pending process. 

6. How to change from H1B to B2 - Step by Step Guide

6.1 Four Steps for Changing from H1B to B2 

6.2 Required Documents for Changing from H1B to B2

• The completed Form I-539 for the application to extend/change nonimmigrant status, along with a filing fee ($420 for online filing; $470 for paper filing) payable to the Department of Homeland Security.
• A financial statement demonstrating that you will be able to financially support the entire trip.
• An explanation letter describing your reason for change of status.
• Intended travel itinerary for your U.S. trip.
• Proof of strong ties to your home country.

Note: You may state your reasons to return to your home country after the U.S. trip, which could be family members you support at home, a job or academic program you are obligated to, or your assets in your home country. However, switching back to H1B after B1/B2 seamlessly may raise questions about your immigrant intent. You may need to consult with an attorney (link).

• Copies of passport and visa.
• Copy of Form I94, which indicates your arrival in and intended departure from the US.
• Recent digital photograph that meets the U.S.government guidelines. 

* Beginning Oct. 1, 2023, the $85 biometric fee is no longer required.

6.3 Processing Time

The processing time typically ranges from 3 to 8 months, depending on individual situations. It is highly recommended to collaborate with your school’s DSOs when planning your change of status application timeline. Avoid traveling abroad while your application is pending, as it might complicate your case.

No premium processing for B2 applications.

7. Filing Online or by Mail

When changing from an H1B visa to an F1 or B2 visa, applicants cannot apply online. Instead, they must submit their application through the mail.

If you have an H4 dependent also changing status, it's recommended to submit by mail. This way, both applications can be sent together in one package. If applying online, you would need to pay fees twice and the two applications may be processed separately.

8.4 H1B Layoff With Approved I-140

Frequently Asked Questions