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

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 with a U.S. employer.

If you leave your H-1B employer, there are two important timelines. One is the 60-day grace period you have in which to find another job, change to another immigration status, or leave the country. The other relates to what is called "unlawful presence." Here are some considerations when it comes to leaving 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.
2. 60-Day Grace Period: Historically, there was no grace period once your job ended. If your job ended at 5:00 p.m. on Friday, you were supposed to have a new job the following Monday or have made arrangements to leave the United States or change to a different immigration status. Informally, USCIS tended to recognize a 30-day period in which to get your affairs in order. Now there is a formal 60-day grace period. See What Happens If an H-1B Holder Loses Their Job? for how you can take advantage of this time.
3. Accrual of unlawful presence: As mentioned above, one of the key considerations in leaving your H-1B job is when the unlawful presence clock will start ticking. The clock for sure begins once your I-94 Departure Record expires, or when USCIS sends a letter informing you that you are unlawfully present. In other situations, as long as you have a valid I-94 Departure Record, you might not accrue unlawful presence. When you quit working, your employer is legally obligated to inform USCIS that you are no longer working there. At that point, USCIS will revoke your petition approval. That revocation might not necessarily make you unlawfully presence. You'll need to review all your documents with an immigration lawyer to determine if you're merely out of status or actually are unlawfully present. 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 United States for ten years. To be sure, even if you're not unlawfully present, after you exceed the 60-day grace period, your options to return to lawful status become more limited, and you might need to make a trip abroad and return to get back into lawful status.
4. 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. This is a highly specialized subset of immigration law, so be sure to seek out an immigration attorney who works in this area.

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 quitting an 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. If you meet the requirements for so-called H-1B portability, you can start working for the new employer once the new H-1B petition is pending with USCIS.

Another way to remain in lawful immigration status is to apply to USCIS 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 lawful 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. If you're within the 60-day grace period, you'll also want to include applications and correspondence with prospective employers for your job search.

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 your 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 experienced immigration attorney BEFORE quitting your H-1B employment.