Concerned that foreign workers affected by Silicon Valley’s recent large-scale layoffs may “wrongly assume they have no option but to leave the country within 60 days”, U.S. Citizenship and Immigration Services (USCIS) has been actively advising aliens on social media about what their options are to lawfully remain in the United States should they be terminated. Foreign workers generally have a 60-day grace period after the end of their employment to either obtain new employment, consistent with a lawful work visa program, or request for a change of nonimmigrant status.
USCIS recently tweeted the following:
#USCISAnswers: Many people have asked if they can look for a new job while in B-1 or B-2 status. The answer is, yes. Searching for employment and interviewing for a position are permissible B-1 or B-2 activities.
Learn more: https://t.co/zFEneq28L9⬇️
— USCIS (@USCIS) March 22, 2023
While USCIS correctly claimed that aliens must initiate the process for changing their immigration status to one that is work-authorized before they may begin employment, the agency’s response still took many experts in the immigration world by surprise.
The fact is, these types of activities directly conflict with Congress’ restriction that B-1 and B-2 nonimmigrant visa holders only visit the United States for the purpose of engaging in legitimate business activities or tourism, respectively, as well as possess an intention to return home before their visas expire. (Generally, B-1 or B-2 visas are valid for no more than six months.) In order to even obtain a B-1 or B-2 visa, applicants must usually sit for an interview at a U.S. embassy or consulate to convince a consular officer that the purpose of their trip meets these limitations and that the applicants intend to leave after their short-term business or tourism activities are completed. The Immigration and Nationality Act goes as far as to require that B-1 and B-2 visa holders maintain a residence abroad that they have “no intention of abandoning”, and consular officers will reject applications if aliens cannot demonstrate that they are abiding by this requirement or that they cannot afford to travel home.
Moreover, searching for employment in the United States does not fall under the meaning of a legitimate business activity for the purpose of B-1 visa eligibility. The U.S. Department of State’s Foreign Affairs Manual (FAM) describes permissible business activities as those limited to engaging in commercial transactions “which do not involve gainful employment in the United States”, such as negotiating contracts; consulting with associates; activities related to litigation; undertaking independent research; and participating in educational, professional, or business conventions, conferences, or seminars. Furthermore, the FAM explicitly states that, “the issuance of a B-1 visa is not appropriate for applicants who intend to obtain and engage in employment while in the United States.”
How can aliens claim that they intend to return to their home countries while simultaneously interviewing for positions in the United States? While it is conceivably true that an alien could experience a change of intention after arriving in the United States or engage in activities other than business or tourism while here (although business or tourism must still be the primary purpose of an alien’s trip), it is entirely inappropriate for USCIS to present “searching for employment” while in B-1 or B-2 status as a permissible activity or, even worse, suggest it is an option for recently laid-off workers, most of whom are only allowed to work in the United States to fill legitimate gaps in the labor market — not to directly compete with American workers.