USCIS has only been accepting new H-1B petitions for about six weeks, and already they have received almost 35,000 applications – more than half the number USCIS believes will be necessary to use up all of the available H-1B visa numbers until April of 2007. At this rate, unless Congress acts to increase the number of available H-1B visas, H-1B availability could be exhausted by as early as late June – less than 6 weeks from now. This means that anyone wishing to change to H-1B status will need to file their application within the next 6 weeks or risk having to wait nearly a year for the next filing “window” to open.
However, it may not be safe to file the petition right away. Aliens entering on B-1/B-2 visas are subject to the “30-60 day rule.” This rule makes it risky to apply for H-1B status within 60 days of arriving in the US, and positively dangerous to apply for H-1B status within 30 days of arriving. This means that aliens arriving right now (mid-May) will need to wait until at least the middle of June before filing for a change of status – even if they have a job offer before then. Aliens arriving on or after the beginning of June may not be able to file for a change of status at all.
The “30-60 day rule” is a rule that was developed by the Department of State to help consular officers determine when someone has committed visa fraud. People who commit visa fraud can become permanently ineligible to enter the US or receive immigration benefits. Even though this rule was developed by the Department of State, it is also used by USCIS when they are adjudicating applications within the United States. This is why it is extremely important to know about this rule and to understand how it works before you apply for a change of your nonimmigrant status, or any other immigration benefit.
Anyone who does something that is inconsistent with their current immigration status is potentially subject to the 30-60 day rule. For example, a person who enters the United States on a B-1/B-2 visa, then later applies for a change of their status to H-1B status, has done something that is inconsistent with their B-1/B-2 status. It is inconsistent because they entered the United States to visit and now they are trying to stay here and work.
However, you are not guilty of visa fraud just because you do something inconsistent with your current status. People come to the United States intending to be visitors, then change their mind after arriving all the time. However, if you “change your mind” and decide (for example) to apply for H-1B status within 30 days after arriving, USCIS will conclusively presume that you really had that in mind when you entered. They will then use this presumption to conclude that you lied about your intentions when you entered the United States - whether or not you actually did or said anything other than presenting your visa stamp at the airport. This is the “30 day” part of the “30-60 day rule.”
The “60 day” part of the rule says that if you do something inconsistent with your status more than 30 days, but within 60 days of your arrival, USCIS is entitled to be suspicious, and can investigate further, but there is no presumption of fraud. This means that people wishing to file change of status applications during this time period still need to be very careful not to arouse the suspicion of USCIS.
What all this means is that anyone who is currently in any nonimmigrant status and intends to file any application for immigration benefits should consult with their attorney before they do so. This column represents only a very brief summary of what the 30-60 day rule is and how it works. It does not cover all the potential applications of the rule. The obvious problem with the 30-60 day rule when applied to intending H-1B professionals is that, if the alien applies too soon, s/he may be found guilty of visa fraud, but if s/he applies too late, s/he may not be eligible to apply for H-1B status until 2007 – if at all. Calculating when this “window of opportunity” opens, and when it closes, can be very difficult to do and an error in calculation can be disastrous. This kind of calculation is not something you should do by yourself.
