Dear Sophie: Is it OK to use a visitor visa while holding an H-1B?

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Dear Sophie,

I’m in Toronto, Canada, and I was approved for an H-1B, which was recently stamped in my passport. I plan to move to the U.S. next year. Can I 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 as a visitor while holding an approved/stamped H-1B visa?

— Talented in Toronto

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, or visas.
2. Immigrant visas — also known as green cards, or permanent residence.

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 non-immigrant 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 permanent residence.
3. Many visas such as B for visitors, F-1 for students and J-1 for exchange visitors clearly require non-immigrant 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 non-immigrant visas were initially designed for people with non-immigrant 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., 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 non-immigrant 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 non-immigrant visas and then overstaying without authorization.

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

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 versus business visitor

Always be aware that all your future visits or stays in the U.S. could be affected by 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.

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 in the long term, you might have immigrant intent.

Here are a few examples of a few reasons that could satisfy an officer of your bona fide non-immigrant intention:

• “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.”
• “Look, here’s my return ticket because I have to go home to wrap things up for work next week.”

If your trip is purely for pleasure, you can request entry with the B-2 visitor status. However, if there’s a chance you may do research, negotiate a contract, meet with customers, 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.

Keep in mind that 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. However, entering the U.S. on the B-2 tourist visitor visa and conducting business activities while you’re here can be problematic in the long term.

Change of address

When you move to the U.S. next year, remember to ensure that your employer files an amended petition 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 U.S. Citizenship and Immigration Services (USCIS).

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 working 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, and best wishes for your move next year!

— Sophie

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