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Assuming I currently hold 2 visas for the USA.

  • A 10-year validity B-1/B-2, issued a number of years ago but still valid, last used about 6 years ago
  • An H-1B visa valid for a couple of months

And I am currently in the US in H-1B status and employed here full-time.

If I leave the US now and travel to one of the adjacent countries, Canada (with a visa) or Mexico (no visa required), and then return after a few weeks (with both of my US visas still valid), can I specifically request to be admitted in B-1/B-2 status instead of H-1B?
I assume that I'd need to convince the immigration officer I'm standing in front of that I won't be working, and that this would be a high bar to reach, but I would have a convincing story...

The goal of this exercise would be to try to extend the final 6-year expiry of my H-1B (since time spent out of the US can be "reclaimed" by application) but still make occasional short trips back into the US (to check up on my property & that the pet-sitter is doing their job) without unnecessarily 'using up' H-1B days.

Similarly to all of the above (and assuming that the answer is at least no worse than "maybe"):
If I hold an H-4 and I'm also eligible for the VWP, can I ask to be admitted under the VWP instead of H-4?
Would there be much point in this, since the H-4 validity is tied to the principal H-1B?

Note: I'm asking here and not on Expats because although I'm currently in H-1B status, it's the possibility of leaving and then being re-admitted under B-1/B-2 I'm asking about.

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    In principle, yes, you can ask to be admitted in a particular status, but how that applies to this specific case I do not know. Despite the fact that you're concerned about the B status, I expect that on Expatriates you'll more easily reach people who can answer the question convincingly. One thing to consider: a requirement for most nonimmigrant status, including B-2, but not H-1B, is "having a residence in a foreign country which he has no intention of abandoning." Do you have such a residence? – phoog Jul 11 '18 at 20:23
  • @phoog Hmm - tricky one ... Since I left my home country and 'abandoned my foreign residence' (as my intention has always been to switch from H-1B to 'Green Card'), that may well trip me up here. – brhans Jul 11 '18 at 20:27
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This will probably not work.

I assume that I'd need to convince the immigration officer I'm standing in front of that I won't be working, and that this would be a high bar to reach, but I would have a convincing story...

That is not sufficient. You will have to prove that you do not intend to immigrate to the United States (more precisely, that you do not intend to illegally immigrate right now):

Every alien (other than [various types of nonimmigrant visa including H-1B, but not B-1/B-2]) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15)

This will be a tough sell if you are simultaneously trying to get a green card, own a home in the US, and have a full-time job in the US, all of which are rather strongly suggestive of immigrant intent. If we refer to the section it's talking about, and skip to paragraph B:

an alien (other than one coming for [various reasons not applicable here]) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure

You need to have a "residence" somewhere outside the US which you "have no intention of abandoning." But you have a house in the US, which you have presumably not rented out since you mention a pet-sitter. Even assuming you own or rent a second home somewhere else, it's going to be difficult to convince them that you really live there permanently, and intend to continue living there indefinitely, when you clearly also intend to resume living in this US house at some point.

Ideally, you would characterize your US house as a vacation home or something of that nature, and not somewhere you intend to permanently settle. But if that is not true (and based on your question, it certainly sounds untrue to me), do not lie! It would jeopardize both visas, any potential future green card or citizenship status, and could get you barred from entering the US for life.

Even if you (truthfully!) did that, however, I'm skeptical of this overall strategy. They will be looking for ties to your home country to ensure you will leave when the visa expires, and all of the evidence you've shown us points in the opposite direction (showing ties to the US).

Meanwhile, the VWP does you no good, because it's subject to exactly the same rules as B-1/B-2 visas, so it would rise or fall on exactly the same grounds. The only difference is you would have to go to the additional hassle of filling out an ESTA and getting it approved.

  • Luckily, this issues which lead me to ask the question have resolved themselves and I expect to receive my 'advance parole' within the next few weeks while the rest of the 'green card' processing take places. Thx for the answer. – brhans Mar 5 at 12:18

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