Over the past several weeks, we have seen a troubling pattern in Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and outright denials involving individuals who filed timely changes of status from H-1B to B-1 or B-2 following employment termination.

The fact pattern is increasingly familiar. An H-1B worker loses employment and, within the 60-day grace period, files Form I-539 to change to B-1 or B-2 status in order to remain lawfully present while searching for new employment and organizing departure or transition plans. For years, this strategy aligned with publicly available USCIS guidance indicating that terminated workers may apply to change to visitor status during the grace period and that searching for employment and interviewing are permissible B-1 or B-2 activities so long as no employment is undertaken. Foreign nationals relied on that guidance when making critical decisions. Employers relied on it when structuring hiring timelines. Attorneys advised clients based on it. Recently, however, adjudications are taking a markedly different position, and that shift raises serious legal and fairness concerns.

Recent RFEs, NOIDs, and denials assert that job searching is not a permissible B-2 activity, that USCIS website guidance permitting such activity is “archived” and therefore not controlling, and that filing a subsequent H-1B petition demonstrates a lack of proper B-2 intent at the time of filing. This reasoning effectively reframes what had long been treated as a compliance pathway into a potential liability. The result is uncertainty for workers navigating sudden termination and for employers seeking to rehire qualified candidates without disrupting lawful status.

What INA §101(a)(15)(B) Actually Says About B-2 Status and Employment

Before addressing website guidance, it is essential to return to the statutory framework. INA § 101(a)(15)(B) defines a B nonimmigrant as someone visiting temporarily for business or pleasure and specifically excludes individuals coming “for the purpose of performing skilled or unskilled labor.” The operative statutory prohibition is the performance of labor. The statute does not prohibit seeking employment, attending interviews, networking, or communicating with prospective employers. It draws a clear boundary at compensated work within the domestic labor market. Similarly, the regulatory definition of “pleasure” in 22 C.F.R. § 41.31(b)(2) is broad and functional, emphasizing temporary, nonproductive activity. The legal line has always separated employment from exploration. Searching for a job is not employment. Interviewing is not employment. Performing services for wages is employment. That distinction is not semantic; it is statutory.

The recent adjudicatory language suggesting that job searching itself is impermissible under B-2 appears to expand the statutory prohibition beyond its text. Unless and until Congress amends the statute or DHS revises the regulation, the boundary remains employment, not intent to seek employment.

The 60-Day Grace Period vs. B-2 Status: Understanding the Legal Distinction

Recent adjudications also appear to conflate the 60-day grace period with B-2 classification. The grace period allows a terminated H-1B worker to remain in H-1B status for up to 60 days while seeking new employment and filing a petition. That activity occurs while the individual is still in H-1B classification. By contrast, filing Form I-539 to change to B-2 requests a different lawful classification that permits temporary presence without employment.

The expiration of the grace period does not convert lawful exploratory activity into unauthorized labor. The legal inquiry under B-2 remains whether the individual is performing services or receiving wages. Hope for future employment is not equivalent to present participation in the labor market. Yet some recent denials suggest that the mere act of attempting to secure employment renders B-2 classification improper, a conclusion that is not supported by the text of the statute.

USCIS Website Guidance on B-2 Job Searching: Does “Archived” Mean Rescinded?

In several recent cases, USCIS has acknowledged that “articles” indicated that job searching and interviewing may be permissible under B-1 or B-2 classification. However, they fail to mention that those “articles” appear as guidance on their own website, and adjudicators have dismissed that guidance as “archived material.” That explanation is insufficient as a matter of law. Labeling a webpage as archived does not amend INA § 101(a)(15)(B), does not modify 22 C.F.R. § 41.31, and does not create new regulatory text.

If USCIS intends to change its interpretation of B-2 eligibility following H-1B termination, it must do so transparently and with reasoned explanation. Agencies are permitted to evolve policy, but they must account for reliance interests and articulate the basis for change. Quiet reinterpretation through individual adjudications undermines predictability and creates confusion for those attempting to comply with complex immigration rules.

Does Filing a New H-1B Petition Prove Lack of Proper B-2 Intent?

Perhaps the most troubling rationale appearing in recent denials is the assertion that if a B-2 applicant later files a new H-1B petition, that filing demonstrates improper B-2 intent from the outset. This reasoning fundamentally misunderstands how intent operates in immigration law. Intent is evaluated at the time of filing and during the requested period of stay. The law does not require an applicant to predict future events or to foreclose the possibility of changed circumstances.

If an individual later receives an employment offer and an employer files Form I-129, that subsequent development does not retroactively invalidate prior lawful intent. The regulations expressly contemplate concurrent or subsequent adjudication of I-539 and I-129 filings, and USCIS has long acknowledged that approval of a new petition may result in transition to a different nonimmigrant classification without requiring departure.

To argue that filing the I-129 proves bad faith in filing the I-539 creates an untenable situation in which an individual is penalized for pursuing lawful options within the framework provided by USCIS itself. That reasoning effectively discourages compliance and punishes individuals for remaining within the legal system rather than departing prematurely.

Is USCIS Engaging in an Unannounced Policy Shift on B-2 Eligibility?

From an administrative law perspective, this emerging pattern raises significant concerns. Under the Administrative Procedure Act, agency action may be set aside if it is arbitrary, capricious, or not in accordance with law. An agency may revise interpretation, but it must provide a reasoned explanation and apply the new interpretation prospectively.

Foreign nationals facing termination must make rapid, high-stakes decisions during the grace period. If USCIS publicly signals that filing for B-1 or B-2 is a permissible option and individuals rely on that signal, fairness requires that the agency not reverse course through unexplained adjudicatory shifts. The statute has not been amended to prohibit job searching under B-2. The regulation has not been rewritten. Until those legal authorities change, the prohibition remains what Congress enacted: employment, not exploration.

A quiet shift in adjudication without transparent policy change creates instability for employers and foreign nationals alike.

What H-1B Workers and Employers Should Do Now

For foreign nationals navigating termination, the stakes are substantial. Falling out of status can have severe immigration consequences, and timing decisions are often made under intense pressure. Employers recruiting terminated H-1B workers also depend on predictable legal frameworks in order to avoid business disruption and compliance risk.

The recent wave of RFEs and denials suggests that B-1/B-2 filings following termination are receiving heightened scrutiny and that subsequent H-1B petitions are being used to challenge prior intent. That does not mean B-2 filings are categorically impossible, but it does mean they require careful documentation of temporary purpose, non-employment activity, financial self-sufficiency, and residence abroad. Employers should not assume that a B-2 filing will be viewed neutrally, and foreign nationals should be prepared for detailed scrutiny of their activities and timeline.

Final Thoughts: Transparency Matters in Immigration Policy

If USCIS intends to prohibit job searching under B-1 or B-2 classification, it should amend the regulation or issue formal policy guidance explaining that position. What is concerning is not policy evolution itself but the lack of transparency and consistency. The statute prohibits performing labor. It does not prohibit interviewing. Until Congress or DHS changes that boundary, adjudications should reflect the law as written.

Transparency and predictability are essential components of due process, particularly in a system where individuals must make time-sensitive decisions that affect their professional and personal futures.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.