Violating the terms of one's tourist or visitor visa (B-1 or B-2), including staying in the U.S. beyond the time permitted, can result in severe immigration consequences. In particular, it is not wise to get a tourist visa to the U.S. thinking that you can find a job and stay here. This could result in U.S. immigration authorities accusing you of misusing the tourist visa and then denying any and all future immigration applications.
Nevertheless, narrow situations exist in which a foreign national who entered the U.S. as a tourist might qualify for a change of status in order to receive a work visa, based on sponsorship from a U.S. employer. This article will explain the mechanics of applying for a U.S. work visa and describe how one can maintain lawful immigration status in the U.S. and avoid an "overstay," while awaiting approval.
In most immigration contexts, to overstay means to remain in the U.S. past the expiration date listed on your Form I-94 Arrival/Departure record. Prior to April 2013, the Customs and Border Protection (CBP) officer who admitted a foreign national would give that person an I-94 card stamped with a date, showing when their lawful B-1 or B-2 status in the U.S. would expire. Today, most visa holders (nonimmigrants) must access that document at the CBP website.
For example, let's say you are a Russian citizen. You come to the U.S. in B-2 status on January 1, 2023, with a multiple-entry visa that's still good for many more years. At the port of entry, the CBP officer creates a Form I-94 for you in the CBP database, stating that your B-2 status is valid through June 1, 2023. You must, unless you receive an extension, leave the U.S. on or before June 1, 2023. If you do not leave the U.S. within that time frame, you will likely begin to accrue unlawful presence (discussed in detail below).
In order to avoid overstaying your permitted time in the U.S., you can either depart before your status expires, apply to extend your immigration status, or apply to change your status and ideally obtain a work visa in the U.S. during the validity period of your current status.
Since you are not authorized to work in the U.S. while on B-1 or B-2 status, you must change your status to one that allows you to work in the United States. Once you file a change of status application, you are deemed to be maintaining lawful status while it is awaiting a decision from U.S. Citizenship and Immigration Services (USCIS), even if your B-1/2 status expires after that.
But a lot will need to happen before you can ask USCIS for a change of status in order to work, as described next.
There are several different types of work visas that might be available to you based upon your qualifications, immigration situation, and luck at finding a U.S. employer willing to sponsor you.
One type of visa that many foreign workers pursue is the H-1B, which allows a foreign worker to temporarily work for a U.S. employer in a specialty occupation.
To apply for an H-1B, your employer must first file an I-129 petition with USCIS. This will note that you are already in the U.S. in B-1 or B-2 status, and will ask USCIS to do two things:
Another type of work visa that works for some people is the O-1. It allows a foreign worker who possesses extraordinary abilities to work for a U.S. employer temporarily. Similar to the H-1B, in order to apply for an O-1, your employer must file an I-129 petition with USCIS and ask it to grant you a change of immigration status and an extension of status.
There are other work visas that you might also qualify for. The most important concept to bear in mind is that you must file your petition before your B status expires. Talk to an attorney as soon as possible if it looks like you have a job possibility.
You will begin to accrue what's called "unlawful presence" if you overstay the permitted time on your visa and fail to timely file a petition with USCIS to change your status. (Once your change of status or extension of status application is on file with USCIS, however, you're allowed to stay until getting a decision, even if your deadline for departure passes.)
Accruing unlawful presence can result in severe immigration penalties. Specifically, if you accrue more than 180 continuous days but less than one year of unlawful presence, once you leave the U.S. you will be barred from re-entering for a period of three years. And, if you accrue one year or more of unlawful presence, you will be subject to a ten-year bar to reentry once you leave the United States.
There are waivers available, which can lift these bars and allow a foreign national to lawfully enter the United States. However, these immigration waivers can be highly complicated, and require a sophisticated understanding of the applicable laws and regulations. One of the biggest stumbling blocks for applicants is that these waivers depend on having U.S. family members who will experience extreme hardship if you are denied.
It's wise to consult an immigration lawyer for a full analysis of your case. Doing so can end up saving you both time and money.