There are a variety of different immigrant and non-immigrant visas available for individuals looking to legally enter the U.S. Some are temporary, meaning they only provide resident status for a set period of time. For international employees coming to the U.S. to work temporarily, U.S. Citizenship and Immigration Services (USCIS) offers the H-1B visa.
The H-1B visa classification is designed for foreign workers who are temporarily coming to the U.S. to provide a service to U.S. employers. To apply for an H-1B visa, you need an employer to sponsor you. Your relationship with this employer is, unfortunately, an essential part of maintaining your immigration status.
The H-1B is often used by college students after graduation. Converting their F-1 visa to an H-1B allows them to continue working.
One of the largest downsides to an H-1B visa is that your immigration status is dependent on fulfilling the terms of your employment. If your employment ends for one reason or another, you will likely lose your lawful status. If you remain in the country without lawful status, you will start to build unlawful presence––too much unlawful presence will bar you from legally entering the U.S.
There are a multitude of reasons why you may lose your H-1B employment in the U.S. The company that helped you get the visa may lay you off as a result of job losses, reduced hours, public health issues, etc. The U.S. considers H-1B employees to be “at will,” meaning that an employer can let go employees at any time as long as it is for lawful reasons.
You do not need a written agreement, however, to have access to certain benefits, such as a severance package. This is money given to terminated employees to help with their future expenses.
Additionally, there is a U.S. regulation that requires H-1B employers to pay for the return transportation of their employees. 8 C.F.R. § 214.2(h)(4)(iii)(E) only includes “reasonable” costs, but it will help you get back to your previous country of residence upon being laid off. The employer is also not required to pay for transportation of any H-4 dependents who came to the U.S. with you.
As mentioned above, unless there is a written agreement to be treated differently, you will maintain the same rights as a regular employee in the U.S. This means that, depending on the nature of your termination, you may lose certain privileges or benefits. If you are let go for poor work performance or other negative circumstances, you will still be entitled to eligible severance benefits and return transportation.
However, many of the regulations surrounding the grace period and USCIS extension of stay depend on the discretion of your employer and the immigration agent handling your case. An H-1B employee being fired for performance reasons, as opposed to laid off for practical reasons, can have a negative impact on future decisions.
Some of the most drastic consequences of losing your job may come if you are the person who terminates your employment. If you voluntarily quit your job, the employer will no longer be required to pay for the cost of your transportation back to your previous country of residence.
When you quit, your sponsored status will end immediately and you will begin accruing days of unlawful presence.
If you are fulfilling a three-year J-1 waiver obligation performing a medical service in underserved locations, you may lose your eligibility if you quit your duties.
If you have lost your job or are contemplating a job transition, you may have heard rumors of an H-1B grace period. Every immigrant who enters on a temporary visa will be given a period of stay on their I-94. This window will align with the time that you are sponsored to work as an employee.
At the discretion of the USCIS agent who handles your documents, you may be granted a grace period of 10 days prior to your period of stay and 10 days after the expiration date. This time allows you to get settled in the U.S. before you start working and back home after you finish your job. If you have been granted the grace period and do not need the full time to get settled, feel free to vacation for those days and enjoy your time.
If you intend on moving from one job to another or your employer is filling out another application to extend your work authorization, you have a maximum grace period of 60 days to remain in the country before you start drawing unlawful presence.
USCIS can use discretion to shorten the 60-day period if they do not believe that you are pursuing work opportunities. Your grace period could also be limited by the expiration date on your I-94 form. The I-94 date must be adhered to even if you are still within the parameters of a grace period.
You can also apply for a change in status to a different visa category in this grace period, but you must meet all the eligibility requirements to do so.
Regardless of why your employment status changed, your employer is legally required to alert USCIS that you no longer work for them. USCIS will revoke your H-1B petition approval once they are notified. If you don’t have another H-1B employer arranged and remain in the U.S., you may start to accrue unlawful presence.
More than 180 days of unlawful presence—but less than 365—can lead to a three-year ban from reentering the U.S. If you are found to be unlawfully present for more than 365 days, you will be barred from reentering the country for 10 years.
If you are aware that your H-1B period is ending soon, you are allowed to begin looking for a new sponsor. If you find an employer willing to sponsor you, they can file an I-129 petition on your behalf. Once you stop working for your other job, you can start working for the new employer as soon as the petition has been filed, even if it has not yet been approved by USCIS.
In some cases, an employer cannot let you know ahead of time that your employment is being terminated. This is one scenario in which you will have a maximum grace period of 60 days that can be shortened if USCIS believes you’re not trying to recover your lost status.
To apply for another H-1B status from USCIS, you will need to provide evidence that you were maintaining your status and trying to get back into status during your grace period. This may include pay stubs from your previous employer and any documentation/correspondence from your job search.
Your choices after losing H-1B status are simple:
Assuming you want to stay in the U.S. legally, you will have to choose from the first two options. It’s not always easy to find a sponsoring employer when you have a time limit. While USCIS shortening your grace period is solid motivation, you can try for all 60 days and still make no progress. An immigration lawyer can point you in the direction of helpful resources that will provide better leads.
If you are applying for a different type of visa, the process can become very complicated. First, you need to find another type of visa for which you meet all the requirements, then you need to put together an application and get approved before your expiration date runs out.
Our attorneys have a deep understanding of USCIS regulations and expectations. We will help you determine the best use of your time and, if applicable, track the necessary documents you need to submit an application.
Contact the Scott D. Pollock & Associates, P.C. team for legal assistance today.