Change of Status in Unforeseen Circumstances

Expert Legal Guidance on Change of Status and Employment Authorization in Unforeseen Circumstances with a San Jose Bay Area Immigration Attorney

Navigating U.S. immigration laws can be challenging, especially for H-1B holders facing layoffs or unforeseen circumstances. Maintaining your legal status during such times is crucial. The Ahluwalia Firm, based in the San Jose Bay Area, specializes in these intricate situations, providing strategic advice and comprehensive legal services.

Evaluating Change of Status and Employment Authorization Options

For H-1B visa holders facing layoffs, maintaining legal status in the U.S. is a top priority. One option is changing status to a B-2 (Visitor for Pleasure) visa, allowing a stay of up to six months. However, applying for an Employment Authorization Document (EAD) based on compelling circumstances may be more advantageous option for many. An EAD under compelling circumstances allows authorization to work in the U.S. for up to one year, with the possibility of extension if compelling circumstances continue.

Understanding the Limitations of Change of Status

Changing to a B-2 visa or any other status might not be the ideal solution for everyone, particularly for H-1B visa holders who have reached the maximum allowed six-year stay under U.S. immigration laws and have an approved I-140 petition.

Period of Stay in H-1B Status Beyond the Six-Year Maximum

Sections 106 and 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21) provide exemptions to the six-year maximum period of stay rules for certain H-1B aliens being sponsored by employers for permanent residence and who are subject to lengthy processing delays. Although both provisions of AC21 use the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States.

Filing for a Change of Status After Maxing Out H-1B

H-1B visa holders who have maxed out their six-year limit and are eligible for the 7th year extension can still maintain their status in the United States under specific conditions:

• Change of Status Due to Job Loss: If an H-1B visa holder loses their job, they can file for a change of status to another non-immigrant status, such as a B-2 (Visitor for Pleasure) visa, to remain in the United States legally while seeking new employment.
• Subsequent H-1B Sponsorship: Once the individual secures a new employer willing to sponsor their H-1B, they can file for another change of status and an extension of stay. This can be done while being in the United States in their current non-immigrant status.

USCIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status or in any other nonimmigrant status such as B-1/B-2, Visitor for Pleasure.

Strategic Considerations

It is crucial for H-1B visa holders, especially those with an approved I-140 and who are reliant on AC21 extensions, to carefully consider their options. Consulting with an experienced immigration attorney becomes indispensable in these cases. An attorney can provide guidance tailored to the individual’s specific circumstances, helping to navigate the complex interplay of visa statuses, potential status changes, and strategic decisions about future residency and employment in the U.S.

Case-by-Case Evaluation is Crucial

Every immigration case carries its own set of merits and limitations. Effective legal strategy involves a thorough evaluation of the individual’s current status, future aspirations, and the specific circumstances leading to their need for a status change or employment authorization. At The Ahluwalia Firm, our approach is to closely analyze each case, ensuring that our clients receive tailored advice that best fits their situation and maximizes their chances of achieving a favorable outcome.

Why Choose The Ahluwalia Firm?

With a profound understanding of immigration law and a deep commitment to our clients, The Ahluwalia Firm stands out as a leader in immigration legal services in the San Jose Bay Area. Our experienced attorneys not only understand the law but also empathize with the challenges faced by immigrants. We pride ourselves on providing compassionate, comprehensive legal representation, ensuring that each client navigates the immigration process with confidence and clarity.

For those facing layoffs or other changes that impact your immigration status, making informed decisions is key. Whether it’s transitioning to a B-2 visa, applying for an EAD based on compelling reasons, or exploring other legal avenues, The Ahluwalia Firm is here to guide you through every step of the process.

Contact us today to discuss your situation and explore your options. Let us help you maintain your status and plan your future in the United States with certainty and security.