One Missed Day of Status Could Send You to Immigration Court Protect Yourself Now

Maintaining H-1B or other Status Matters More Than Ever Now

Under the recent policy of the U.S. Citizenship and Immigration Services (USCIS), individuals who fall out of status or have gaps in status face significantly heightened risks including the issuance of a Notice to Appear (NTA) initiating removal proceedings. A USCIS policy memorandum issued on February 28, 2025, clarifies that USCIS will issue an NTA when a benefit request is denied and the applicant is not lawfully present or is otherwise removable.
This means that continuing non-immigrant status without interruption is critically important.

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Recommended Strategic Approach for B-2 → H-1B Pathway

For applicants currently in the U.S. on a B-2 visitor status who seek to transition to employment status via the H-1B route, consider the following sequence of filings and strategic timing:

  1. File a change of status from B-2 to B-2 (extension or change) immediately, so that you maintain your status and avoid any gap.
  2. Once the employer’s Labor Condition Application (LCA) is approved (for example, after a government reopen or backlog clearance), file the H-1B petition in premium processing so that you can begin work as soon as possible after approval.
  3. Before adjudication of the H-1B, ask your attorney to request adjudication of the pending B-2 change of status first, so that your status is validated before relying on the H-1B.
  4. If at any point you are deemed to be “out of status” (for example, your B-2 status terminates and no valid change/extension is in place), then you may have no choice but to travel abroad for visa stamping before re-entering the U.S.

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The $100,000 Fee and Its Impact on Entry/Re-Entry

As of September 21, 2025, an executive proclamation mandated that new H-1B visa applicants outside the U.S. (entering the U.S.) must pay a one-time $100,000 fee unless an exception applies.  However, USCIS clarified that the fee does not apply to change-of-status petitions filed inside the U.S. for change of status, renewals of H-1B status (or changing employers or amendments)

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Why this matters:

  • If you become out of status and must depart and re-enter on an H-1B visa abroad, the employer may need to pay the $100K fee.
  • If you instead change status inside the U.S. (and never exit), the fee generally does not apply.

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Key Take-Aways for Applicants and Employers

  • Avoid gaps in your lawful status. A break in status increases risk of NTA issuance and removal proceedings.
  • Time your filings carefully. A B-2 change, followed by H-1B in premium processing, and pre-adjudication of the B-2 change helps maintain continuous lawful presence.
  • Use premium processing for the H-1B petition to minimize downtime between approval and being work-authorized.
  • Travel abroad only as a last resort if you are out of status — because re-entry may trigger the $100K fee requirement, and your options may be limited.
  • Work with counsel to monitor status, filing deadlines, USCIS adjudication, and international travel risk.