May 11th, 2026

We have now heard of widespread reports of denials in this type of scenario: an H-1B worker gets laid off of their H-1B job, so they file a B-2 change of status petition within their 60-day grace period. Thereafter, they are offered a new H-1B job. Upon filing the new H-1B change of status petition, the worker receives a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) on their B-2 change of status petition, and then also receives an RFE or NOID on the H-1B change of status petition. If they cannot satisfactorily demonstrate that they intended to engage in B-2 appropriate activities (vacation), then both applications are denied. Even with strong RFE and NOID responses showing B-2 intent, USCIS is denying many of these change of status requests.

As an employer, if you hire a worker who claims they are on H-1B, please check to make sure they are actually on an H-1B currently and have not filed a B-2 change of status petition. You may want to avoid hiring individuals who had an H-1B previously but who currently are (1) out of their 60-day grace period and (2) have a B-2 change of status petition pending. Hopefully this will change in the future.

As an employee, we recommend that you consider this trend before resorting to a B-2 change of status petition. While it may help you avoid consular processing an H-1B with the $100,000 fee (which is still in place), we recommend consulting with an attorney before doing so, since this is no longer a straightforward option. You may have other options that are more likely to be successful.

Categories: Updates