Ask Sophie™: Is it ok to use a visitor visa while holding an H-1B?

Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder, or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I’m in Toronto, Canada. I was approved for an H-1B, which was recently stamped in my passport. I plan to move to the U.S. next year. Is it possible for me to visit the U.S. on a previous B-1/B-2 visa this November? Would it raise any red flags if I were to visit the U.S. as a visitor while holding an approved/stamped H-1B visa?

— Talented in Toronto

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Full Ask Sophie™ article:

Dear Talented,

Congrats on your H-1B approval and stamp! Before I dive into your questions, let’s cover some basics on visa types.

Visa Types

Immigration law has two broad types of visas:

1. Non-immigrant visas –  also sometimes called work visas
2. Immigrant visas – aka green cards or permanent residence visas

But it’s a little tricky because another factor in whether somebody receives a visa and is admitted for entry is their intention. The government officers are evaluating whether they think you intend to immigrate to the United States.

So, there’s an overlay between what type of visa or green card you want and whether you have nonimmigrant or immigrant intent: 

Sophie’s Matrix of Intention

Notes:

1. Immigrant intent is the point of a green card and you must have the intention to permanently immigrate to the U.S. if you want one!
2. You’ve got to actually want to live in the U.S. to qualify for and maintain a permanent residence.
3. Many visas, such as B for visitors, F-1 for students, and J-1 for exchange visitors, clearly require nonimmigrant intent, and evidence of immigrant intent is cause for denial.
4. Certain visas, such as H-1B and L-1, are dual intent, and your intention to stay short- or long-term is irrelevant to the adjudication.
5. Most nonimmigrant visas were initially designed for people with nonimmigrant intent.

So for people with immigrant intent, the law provides for green cards. The whole point of obtaining permanent residence is to enable certain people to achieve their intention of staying permanently in the U.S. They can live and work in the U.S. and travel abroad with few restrictions, and even apply to become U.S. citizens after fulfilling certain requirements.

However, people seeking single-intent visas or entry based on these visas that only permit nonimmigrant intent, such as B in the situation you describe, must demonstrate to immigration officials that their stay in the U.S is only temporary and they intend to eventually return to live in their home country. 

In general, it can be challenging to shift from a non-immigrant visa to an immigrant visa, also known as a green card.  The general purpose of this immigration policy is so that people don’t abuse the system by obtaining nonimmigrant visas and then overstaying without authorization.

But there is an exception. It is ok for people on dual-intent visas (which are generally nonimmigrant work visas) to apply for green cards.

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Multiple Visas in Your Passport

The B-1/B-2 business/tourist visitor visa is a non-immigrant visa, while the H-1B specialty occupation visa is one of a few dual-intent visas.

Usually, a consular official will not remove a B-1/B-2 visa from a passport before placing an H-1B visa stamp in the passport. Individuals are permitted to have multiple U.S. visas in their passports that are both valid and compatible.  Sometimes though, a consular officer will approve one visa while canceling another preexisting visa.  

It is possible to enter the U.S. on either your H-1B or B-1/B-2 visa depending on the purpose of your trip, but you need to prepare for entering at the airport or border and describing the purpose of your trip.

Tourist vs. Business Visitor

Always be aware of your reasons for coming to the U.S., the visa you use, what you say to U.S. Customs and Border Protection (CBP) officers when you arrive in the U.S., what you do while you’re in the U.S., and when you leave could all affect future visits or stays in the U.S.

If your trip to the U.S. in November is purely temporary, then entering the U.S. on the B-1/B-2 tourist visitor visa will be fine, but you might be questioned as to whether you truly intend to stay temporarily since your H-1B could be interpreted as an indication that long-term you might have immigrant intent. But explaining things like “The company isn’t ready for me, they need to wait for their funding,” “We can’t move until my kid finishes the school year,” or “Look here’s my return ticket because I have to go home to wrap things up for work next week,” all of these types of reasons are examples (if they are legitimate and true) of things that could satisfy an officer of your bona fide nonimmigrant intention.

If your trip is purely for pleasure, you can request entry in B-2 visitor status.  However, if there’s a chance you may do research, negotiate a contract, meet with customers, or attend conferences or any other meetings, it’s probably better to tell the customs officer that you may conduct business under the B-1 business visitor visa. (This is always a topic you can hire an attorney directly in consultation before entry if you have any doubts or questions.) 

Keep in mind: you cannot work or get paid in the U.S. while you are here on a B-1 visa, but the business activities I mentioned above are allowed. Entering the U.S. on a B-2 tourist visitor visa but conducting business activities while you’re here can be problematic long-term.

Change of Address

Next year when you move to the U.S., keep in mind that if your work address is different from the one your company listed in the Labor Condition Application (LCA) submitted to the U.S. Department of Labor and the H-1B petition submitted to the U.S. Citizenship and Immigration Services (USCIS) – your employer must file an amended petition.

The LCA describes the conditions of employment and job duties based on the location of the job, which controls such things as the prevailing wage and working conditions to avoid negatively impacting the wages and work conditions of American workers. Once the LCA is approved by the Labor Department, the H-1B beneficiary must work under the conditions described.

Have a great trip to the U.S. in November—and best wishes for your move next year!

— Sophie

Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.

The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!