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?
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 status in the U.S. is dependent upon your fulfillment of the terms and conditions of your approved employment for a U.S.employer. Often, once you cease to be employed pursuant to your H-1B status, you cease to maintain lawful status in the country and begin accruing unlawful presence. The following are possible consequences of quitting your H-1B employment:
You may 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. Please be aware that this grace period is not authorized by law, and is merely a discretionary USCIS policy. There is nothing in the law that entitles you to this grace period. See Is There a Grace Period Between Jobs For H-1B Holders?
There are multiple ways to remain in status after you quit your job. Perhaps the best way to maintain your status 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. See our article, How to Transfer an H-1B to a New Job, for more on the process.
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 U.S., but if you would qualify for another status such as L-1, or H-4, you can apply for a change of status to those as well.
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.
The law considers H-1B employment “at-will” employment, meaning you have the right to quit your job. Additionally, your employer is prohibited from retaliating against you for quitting. However, you are still bound to the 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.
Terminating H-1B employment can have very serious consequences on your present immigration status and your future immigration opportunities. There are multiple strategies available that can assist you in maintaining status, but your own specific situation will dictate how you should proceed. It is highly recommended that you consult with an immigration attorney BEFORE you quit your H-1B employment.