What Happens If an Employee on an H-1B Work Permit Quits?

Possible consequences of quitting and ways you may be able remain in lawful status after ending the employment.

By , Attorney · George Mason University Law School

If you are a foreign worker in H-1B status who is contemplating quitting your job with a U.S employer, this article will alert you to the possible consequences of quitting and explain how you may remain in lawful status after ending the employment.

If you've lost your job involuntarily, or fear you may, see What Happens If an H-1B Holder Loses Their Job?

Consequences of Quitting H-1B Employment

H-1B classification is available to foreign workers coming to the U.S. temporarily to perform services for U.S. employers. There are many advantages of H-1B status. However, one possible disadvantage is that your lawful immigration status in the U.S. is dependent upon your fulfillment of the terms and conditions of your approved employment for a U.S. employer.

Once someone ceases to be employed pursuant to H-1B status, they in most situations cease to maintain lawful status in the country, and begin accruing unlawful presence (which eventually leads to becoming inadmissible to the United States). The following are possible consequences of quitting your H-1B employment:

  1. Employer does NOT pay costs of return trip home: Under U.S. immigration regulations at 8 C.F.R. 214.2(h)(4)(iii)(E), employers must pay the reasonable costs of transporting H-1B workers back to their home country. However, if the a quits, the employer is NOT responsible for paying these costs.
  1. Accrual of unlawful presence: As stated above, your lawful status is dependent upon your continued employment with the U.S. employer. Once you quit, your status effectively ends. When you quit, your employer is legally obligated to inform USCIS that you are no longer working there. At that point, USCIS will revoke your petition approval. Under the unlawful presence ground of inadmissibility, if you accrue more than 180 days of unlawful presence but fewer than 365 days and then leave, you are barred from reentering the U.S. for three years. If you accrue more than 365 days of unlawful presence and then leave, you are barred from reentering the U.S. for ten years.
  1. Jeopardizing your J-1 waiver: If you are in H-1B status because you are fulfilling your three-year J-1 waiver obligation by performing medical services in a medically underserved area, you could face additional consequences if you terminate your employment. These consequences include failing to comply with the provisions of your J-1 waiver and being forced to fulfill the two-year home residency requirement.

You might have heard that there is a grace period of ten days given to H-1B workers who quit, in order to allow them to wrap up their affairs and leave the country. This grace period is not written into the law, however; it is merely a discretionary USCIS policy, and thus could easily change.

Possible Ways to Remain in Lawful Immigration Status After Quitting an H-1B Job

There are multiple ways to remain in lawful immigration status after you quit your H-1B job. Perhaps the best way to is for a second employer to file an I-129 petition on your behalf while you are still working for your original H-1B employer. Once USCIS approves that I-129 petition, you can quit your original job and immediately begin working for your new employer, which ensures no gaps in your status.

Another way to remain in status is to apply for a change of status. Many H-1B workers apply for a change of status from H-1B to F-1 so that they may attend a university in the United States. If you would qualify for another status, such as L-1, or H-4, you can apply to change to one of those, instead.

The most important concept to remember when applying to change your status is that you must demonstrate to USCIS that you were maintaining status up to the point of your application. In the context of H-1B employment, you must provide evidence of your employment, such as pay stubs and timesheets.

What Are My Employment-Law Rights With Regard to Quitting My H-1B Job?

The law considers H-1B employment "at-will" employment, meaning you have the right to quit your job (and the employer has the right to terminate you). Additionally, your employer is prohibited from retaliating against you for quitting. However, you are still bound to any employment contract you signed with your employer. Therefore, if your contract contains a penalty for quitting (such as disqualification from severance packages), you will incur this penalty.

Important Reminders for H-1B Visa Holders Thinking of Quitting

Terminating H-1B employment can have serious consequences for someone's present immigration status and future immigration opportunities. There are multiple strategies available that can assist in maintaining status, but your own situation will dictate how you should proceed. It is highly recommended that you consult with an immigration attorney BEFORE quitting your H-1B employment.

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