H-1Bs workers can, unfortunately, end up losing the job upon which their visa and status depend. This might happen because the company who helped them get the visa laid them off or otherwise terminated their employment. In the COVID-19 era, job losses, reduced hours, and other changes occur frequently and without advance notice.
This article outlines the possible consequences of an H-1B worker losing a job and explains how an H-1B worker can maintain lawful status even after the termination of employment.
(This article does not address the consequences of an H-1B worker quitting a job voluntarily. For information on that, see What Happens if an Employee on an H-1B Work Permit Quits?)
Unless you have a written employment contract, the law in the U.S. ordinarily considers H-1B employment to be “at will,” meaning the employer has the right to end your employment for lawful reasons at any time.
However, you also have the right to be treated like any U.S. citizen employee in regards to your company’s employment-termination procedures. For example, if your company provides severance packages to its employees, you are entitled to this benefit.
H-1B classification is available to foreign workers coming to the U.S. temporarily to perform services for U.S. employers. While there are many advantages to H-1B status, one disadvantage is that your lawful status is based on, and therefore dependent upon, your employment status.
Once you cease to be employed, you have a maximum 60-day grace period in which to either get another employer to sponsor you for H-1B employment, arrange for another visa status allowing you to stay in the U.S., or make plans to head home.
If you are not applying to change your status in the U.S., then once your employment ends, you have up to 60 days, or until your status expires if it’s sooner than 60 days, in which to leave the United States.
A little silver lining to this dark cloud is U.S. immigration regulation 8 C.F.R. § 214.2(h)(4)(iii)(E), which requires H-1B employers to pay the reasonable costs of transporting H-1B workers back to their last country of residence abroad upon termination of their employment.
The employer is not, however, required to pay the transportation costs of H-4 dependents.
Even if your employer was forced to let you go for reasons that had nothing to do with your work performance, your employer is legally obligated to inform USCIS that you are no longer working there.
At that point, USCIS will revoke your H-1B petition approval. If you’re still in the U.S. and have not arranged for another H-1B employer or immigration status, you could become unlawfully present. If you accrue more than 180 days of unlawful presence in the U.S. but less than 365 days, you will be barred from reentering the U.S. for three years. If you accrue more than 365 days of unlawful presence, you will be barred from reentering the U.S. for ten years.
There are multiple ways to remain in lawful status after you lose your job. If you are losing your job for reasons not due to your work performance, it is likely that your employer will inform you as far in advance as possible. After receiving such notice, you should immediately begin looking for new U.S. employment.
If you find an employer willing to sponsor you for H-1B status, that employer can file an I-129 petition on your behalf, and you can actually begin working for that employer even before USCIS approves the petition.
Unfortunately, it's not always possible for an employer to let you know ahead of time that you will be let go. In such a situation, you may still look for alternate employment, but the longer it takes for you to find another H-1B sponsor, the more you run the risk of being deemed out of status. As noted above, the grace period is a maximum of 60 days, but USCIS can shorten that period if you’re not actively trying to get back into lawful status.
And of course, if the petition you had with the employer that just terminated you expires sooner than 60 days, your grace period is only to that expiration date.
When applying for another grant of H-1B status, you will need to submit to USCIS evidence that you were maintaining your previous H-1B status and actively trying to get back into status during the 60-day maximum grace period. This evidence includes copies of your pay stubs and correspondence or other documentation showing your job search efforts.
Another way to remain in status in the U.S. is to apply for a "change of status." Many H-1B workers apply for a change to F-1 status, so that they may attend universities in the United States. Or, if you would qualify for another status such as L-1 or H-4, you can apply for a change to one of those.
In the COVID-19 pandemic era, it might be worth considering a change of status to B-2 visitor to buy some more time to settle your affairs. Normally, USCIS would not approve such a change of status, because searching for a job after being terminated is not among the appropriate activities for a visitor visa. A pandemic, however, is far from normal.
It’s unclear in the early days of COVID-19 how USCIS will view an H-1B to B-2 change of status request, but if you can document a local stay-at-home order in your area and bad or worsening conditions in your home country, this could be an option to discuss with an immigration lawyer.
In any case, it's best to apply for the change of status as soon as you can, preferably while you are still working for your H-1B employer. If you are unable to demonstrate to USCIS that you were maintaining status, you could be required to leave the U.S. and obtain a new visa.