Question: My H-2B job is ending and I do not have a new job yet. Can I remain in the United States as a visitor or change to another status?
Short answer: There may be options, but an H-2B worker should not assume that the end of a job automatically permits a fixed period of stay or authorizes new employment. The petition dates, Form I-94, the date and reason employment ended, and the timing of any new filing all matter.
What is the 60-day cessation-of-employment period?
Under 8 CFR §214.2(h)(13)(i)(C)-(D), an H-2B worker generally will not be treated as having failed to maintain nonimmigrant status solely because the employment underlying the classification ended, for up to 60 consecutive days or until the end of the authorized period of admission, whichever is shorter, once during each authorized admission period. During that period, the worker may work only if separately authorized under the applicable regulations.
The regulation also allows an eligible person in that period to apply for an extension of stay or change of status, if otherwise eligible. This is not an automatic approval, and it does not authorize work that is not separately permitted.
How is the 30-day post-petition period different?
A separate provision, 8 CFR §214.2(h)(6)(vii)(A), addresses an additional period of up to 30 days after the H-2B petition validity period for departure or to seek an extension based on a subsequent offer of employment, subject to the regulation’s limits. The 60-day cessation-of-employment period, the petition’s validity period, the authorized period of admission, and the post-petition period have different triggers. They should not be added together to assume an automatic 90-day stay.
If the petition is revoked, a separate regulation addresses the effect of revocation. If the employer dismisses the worker before the end of the authorized job, return-transportation obligations may also require review.
What options may be available?
Request a change to B-2 visitor status
A person may be able to request B-2 status if the person is otherwise eligible, files within the applicable period, and genuinely seeks a temporary visit. B-2 status does not authorize employment. A pending request does not guarantee approval or permit the person to work.
Have a new employer file an H-2B petition
An eligible worker who remains in valid H-2B status may be able to begin working for a new H-2B employer after a properly filed, nonfrivolous petition requesting the same classification, or as of the requested start date, whichever is later. The portability rule has specific conditions: the petition generally must be filed before the authorized period of stay expires, and the worker must not have engaged in unauthorized employment since the last admission. See 8 CFR §214.2(h)(2)(i)(I). Do not start work based only on a job offer or an assumption that portability applies.
Depart or evaluate another qualifying classification
Depending on the facts, departure or a different nonimmigrant classification may be the appropriate course. A future job offer alone does not authorize employment in a new position.
What should be reviewed immediately?
- The I-94 expiration date and the petition’s validity dates.
- The exact date and circumstances in which employment ended or the petition was revoked.
- Whether the person is within an applicable grace period and whether any portion of the authorized stay has expired.
- Whether a new employer can file a qualifying H-2B petition before the deadline and whether portability requirements are met.
- Whether a change-of-status filing is available and what activities are permitted while it is pending.
Need to evaluate options after H-2B employment ends? Messersmith Law Firm can review the I-94, petition history, termination date, and potential filing routes before the available time runs out.
Primary authority: 8 CFR §214.2(h)(2), (h)(6), and (h)(13); 8 CFR §248.1.