What to do if you’re in the U.S. and been recently released from H-1B employment.
I've been working in the U.S. as a software engineer with an H-1B visa for more than a year now. My employer just informed me that my last day of work will be this Friday. Apparently, the company is going through a restructuring, and my job is being eliminated. Does my H-1B visa allow for any grace period, or will I be out of status or "illegal" after my job ends? Can I ask for another visa to look for a job?
Answer
We're sorry to hear you're losing your job. That became an especially common scenario after the start of the coronavirus (COVID-19) pandemic, which caused many businesses to struggle. For more on that specific concern, just in case another pandemic comes along, see How H-1B Workers Can Maintain Legal Status During Coronavirus Pandemic.
More generally speaking, you might have a few options to maintain lawful immigration status, as reviewed below. It's important that you do everything possible to maintain lawful status. If U.S. Citizenship and Immigration Services (USCIS) finds that you are "unlawfully present," you could face harsh legal consequences, particularly after six months go by.
To answer your first question, there is a 60-day maximum grace period for an H-1B worker once the employment ends. Therefore, if your job ends Friday, you will have a maximum of 60 days to arrange for another employer to submit an H-1B petition for you, change to another status, or depart the United States. The H-1B visa category requires you to be working and getting paid, as outlined in your employer's H-1B petition, in order to maintain lawful status. Once your employment ends, you're not maintaining status, but the regulation gives you up to 60 days to get your status in order.
Find Another Job in the U.S. Quickly
The regulations provide for a 60-day maximum grace period for unemployment between H-1B employers. As long as you're actively looking for a job and can show that you've submitted applications, corresponded with prospective employers, or interviewed for new jobs, you're likely to get the full 60 days for your next H-1B employer to submit its petition for you.
On the other hand, if you do nothing for 59 days, and then suddenly have a petition submitted on day 60, USCIS might not approve the status extension part of the petition, and you might need to make a trip home to get a new H-1B visa in your passport before continuing to work for your new H-1B employer.
If it's been more than 60 days since the last H-1B job ended, and you're still in the U.S., the safer course of action is to have the new employer file a petition without a request to extend your status. In this case, once USCIS approves the petition, you would travel outside the U.S., obtain an H-1B visa at the U.S. consulate abroad, and then return to the U.S. to start working for the new employer. The benefit with this option is that it avoids the question of whether you were maintaining status.
If You Have an H-1B Spouse: Change to Dependent H-4 Status
If you happen to have a spouse who also is working in the U.S. with an H-1B visa, you can file an application to change your status from H-1B to H-4 dependent. As long as your spouse is maintaining lawful H-1B status, you can remain here in H-4 status. This would give you time to apply for work authorization as an H-4 and then get a new job. Submit your H-4 change of status application as early as possible during your 60-day grace period.
Apply to a College or University and Change to F-1 Student Status
Again depending upon your situation and the time of year when you lose your job, you might be able to change to F-1 status to pursue another or a higher degree in a full-time academic program.
Apply for a B-2 Tourist Visa
Many people ask about filing an application to change from H-1B status to B-2 visitor status to remain in the U.S. to search for a new job. This is problematic, because searching for a job is not an appropriate "tourist" or visitor-for-pleasure activity. Also, if you find a new job before USCIS approves your B-2 status, you almost certainly will need to take a trip back to your home country to get a visa to reenter the United States in your new job status. USCIS will not process an H-1B petition for an extension of status if there is a pending B-2 application. Only in limited circ*mstances is it even worth considering a B-2 tourist application and only after consulting with a licensed immigration attorney.
Remind Employer to Pay Your Return Transportation
The last option you have is to receive the cost of your return transportation to your last country of residence abroad. If an H-1B employer terminates an H-1B worker, the employer must offer to pay for a flight to allow you to return to your home country, or to your last country of residence abroad. If you leave the employer on your own, this requirement does not apply.
FAQs
If an H1B visa holder is terminated from their employment, they may be eligible for a discretionary grace period of up to 60 days to maintain their status in the same classification. During this time, they may apply for an extension of their current status or change to a different nonimmigrant status.
What happens to H-1B if you get laid off? ›
H1B Visas are employer-specific. If your employment ends, your H1B status becomes invalid. A new H1B Visa is necessary for a change of employer. If your visa expires without renewal, you have a 10-day grace period to depart the US or apply for an extension.
What happens if an H-1B employee is terminated? ›
There is no grace period for H-1B workers. Once employment terminates, the H-1B worker is required to depart from the United States. Consult with an ISSS faculty/scholar advisor if the department plans to end employment prior to the expiration of the H-1B petition.
What happens if you get laid off on a work visa? ›
If sponsored employment is lost, such as being laid off, there is generally a 60-day grace period for work visa holders to find a new job before they have to leave the country.
Can I leave my employer after getting H-1B? ›
Can I change jobs after I get my H-1B? An H-1B approval is employer-specific. It permits an H-1B status holder to work only for the employer that filed the petition. If you decide to change employers, the new employer must apply for the H-1B on your behalf.
What is the time period for layoff? ›
According to section 25C of Industry and dispute Act 1947, maximum days allowed to Layoff of employee by employer is 45 days, for those days, employee who is laid-off is entitled for compensation equal to 50% of the total of the basic wages and dearness allowance that would have been payable to him, had he not been so ...
What is the 60-day rule for H-1B? ›
The 60-day grace period is a provision that allows certain non-immigrant visa holders, including H-1B visa holders, to remain in the U.S. for up to 60 days following the end of their authorized employment period due to being laid off or other reasons for job loss.
What is the deadline for H-1B transfer? ›
Filing Deadlines: The H-1B transfer petition should generally be filed before the employee's current authorized period of stay expires or within the 60-day grace period following the termination of their previous employment.
What if I lose my job after I-140 approval? ›
If an employer withdraws the I-140 after it has been approved for at least 180 days or any time after that, the employee does not have to start over and at least retains an approved I-140 to be able to find a new job offer. This is a built-in protection for foreign national employees in the U.S.
How do I notify USCIS of H-1B termination? ›
The Legal Side of Firing and H-1B Employee
You can do this by simply sending a letter to USCIS who will revoke the petition on the date you request. Secondly, you must withdraw the Labor Condition Application (LCA) with the U.S. Department of Labor (DOL).
As long as they are on a valid H1B status, they are not going to get deported. H1B or any visa holder for that matter is subject to deportation if DHS finds out they overstayed their visa or didnt maintain status, but its very unlikely . How can one apply for H1B visa?
How do I know if my H-1B is terminated? ›
The H-1B status is employment-based, so your status immediately ends on the date employment is terminated. If a change of status or extension of stay has been granted, the I-94 will be at the bottom of the I-797 approval notice.
Is there a grace period for H1B layoff? ›
60-Day Grace Period Explained
According to the USCIS, H-1B employees and their dependents are granted a 60-day grace period after their employment is terminated. During this time, they are considered to be in lawful status and may remain in the US without accruing unlawful presence.
Do companies revoke H1B after layoff? ›
If you change jobs or are terminated while holding an extended H1B visa, you can transfer it, but you will have to start over with your green card application. If your I-140 is approved for less than 180 days, your employer can revoke it, which means your H1B extension will be invalid.
Does laid off count as termination? ›
Under California employment law, there usually isn't a difference between having your employment terminated vs. being laid off; however, an employer must comply with state and federal law in either situation. California is an at-will employment state.
Is there a grace period for H-1B denial? ›
Your grace period starts from the day your attorney receives the denial notice. You will have 60 days time to find new employer and file your H1B visa.
How long is the H-1B extension period? ›
Once your extension is received and receipted by USCIS, your H-1B employment authorization is considered temporarily extended for 240 days while USCIS reviews the petition. This temporary extension allows you to remain in the US and continue your employment.
How many days can I work after H-1B expires? ›
The 240 Day Rule
As long as your employer has filed an H-1B Extension petition before your currently H-1B expires, the beneficiary of the H-1B remains in a period of authorized stay and may continue to work for SCSU for 240 days after the current expiration date while USCIS adjudicates the extension.
