If you've been laid off while on an H-1B visa and are considering adjusting your status based on marriage to a U.S. citizen, you have two main options:

1. Applying for Adjustment of Status (AOS) While Out of Status

2. First Applying for a Change of Status (e.g., B-2 visa) and Then Applying for AOS Within 90 Days

Each approach has advantages and disadvantages. Below, we compare the two paths to help you make an informed decision.

Out of Status vs Change of Status for Adjustment of Status by Marriage to US Citizen

Option 1: Applying for Adjustment of Status While Out of Status

Under U.S. immigration law, immediate relatives (spouses, parents, or minor children of U.S. citizens) are exempt from many restrictions that apply to other visa categories. This includes the ability to adjust status even if they have overstayed a visa or are out of status.

Pros:

✅ Forgiveness for Overstaying:

• Immediate relatives of U.S. citizens are allowed to apply for adjustment of status even if they have overstayed their visa. Unlike employment-based green cards, a marriage-based green card does not require the applicant to maintain continuous legal status.

✅ Simpler Process:

• You avoid the need to apply for a change of status (which may not be approved) and instead proceed directly to filing Form I-485 (Application to Register Permanent Residence or Adjust Status).

✅ Faster Processing:

• Since you skip the change of status step, you may receive your work permit (EAD) and green card faster.

✅ No Risk of Denial Due to “Preconceived Intent”:

• Since you are already out of status, you do not risk violating the "90-day rule" (which assumes fraud if someone changes status or applies for a green card too soon after entering the U.S. on a non-immigrant visa).

Cons:

❌ Limited Work Authorization While Waiting:

• Once you file for adjustment of status, you cannot legally work until you receive a work permit (EAD), which can take several months.

❌ Risk of Denial Due to Fraud or Marriage Scrutiny:

• If USCIS suspects the marriage is fraudulent or entered into just for immigration purposes, they may deny the application, leading to removal proceedings.

❌ No Travel Until Advance Parole Is Approved:

• Leaving the U.S. without advance parole (Form I-131) will be considered abandoning your green card application, which could cause serious issues.

Option 2: First Applying for Change of Status (B-2) and Then Applying for AOS Within 90 Days

Some individuals prefer to file for a change of status (such as from H-1B to B-2) after a layoff before applying for adjustment of status. The goal is to maintain a lawful presence and avoid being out of status.

Pros:

✅ Maintains Legal Status Until AOS Filing:

• If USCIS approves your change of status to B-2, you remain in lawful status, which may offer peace of mind.

✅ Avoids Immediate Scrutiny of Overstay:

• By staying in legal status, you avoid having to explain why you overstayed your visa, which could make your adjustment of status application appear cleaner.

✅ Possibility to Continue Staying Longer If Plans Change:

• If you decide to delay marriage or need more time to prepare for AOS, you won’t be out of status while waiting.

Cons:

❌ No Guarantee of Change of Status Approval:

• USCIS may deny a change of status from H-1B to B-2 if they believe you are trying to “buy time” for marriage-based AOS. This denial could put you out of status anyway.

❌ Potential Violation of the 90-Day Rule:

• If you apply for AOS within 90 days of changing status to B-2, USCIS may presume you had a preconceived intent to apply for a green card, which could lead to scrutiny or even denial.

❌ Additional Cost and Processing Time:

• Filing for a change of status requires paying additional filing fees, and USCIS processing can take months. By the time you receive an answer, you may already be eligible to apply for AOS.

More Information on Applying for Change of Status (B-2) 

Understanding Change of Status

A change of status allows nonimmigrants to switch from one visa category to another without departing the U.S. This process is managed by the U.S. Citizenship and Immigration Services (USCIS). To change from H-1B (specialty occupation worker) to B-2 (visitor for pleasure), you'd file Form I-539, Application to Extend/Change Nonimmigrant Status. ​

Reasons for Changing to B-2 Status

Common reasons for transitioning to B-2 status include:

• Job Loss: If you've been laid off or your employment has ended, switching to B-2 status can provide additional time to seek new employment or make departure arrangements. ​
  
  

• Preparation for Adjustment of Status: If you're planning to apply for permanent residency (green card) and need time to gather necessary documentation or await visa availability, B-2 status can serve as a temporary solution.​
  
  

Application Process

1. File Form I-539: Submit the application to USCIS before your current H-1B status expires. Include all required supporting documents, such as proof of financial support and a detailed explanation of your reasons for the change.
   
   

2. Maintain Status: While your application is pending, it's crucial to maintain your current status until the change is approved. Engaging in activities not permitted under your current visa can result in a denial.​
   
   

3. Processing Time: USCIS processing times can vary. It's advisable to check the current processing times on the USCIS website and plan accordingly.​
   
   

Need Help with Your Case?

Deciding to apply for change of status or applying for adjustment without status is a complex decision that requires analyzing your situation. Consulting with an immigration lawyer is highly recommended. Schedule a strategy session with an experienced immigration attorney today: Schedule a Consultation.