What Happens If an H-1B Holder Loses Their Job?

Possible consequences of an H-1B worker losing a job, and how an H-1B worker may maintain lawful status even after the termination of employment.

An H-1B worker may, unfortunately, end up losing the job upon which his or her visa and status are based, either because the company laid them off or because it otherwise terminated their employment. This article outlines possible consequences of an H-1B worker losing a job, and explains how an H-1B worker may 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 topic, please see "What Happens if an Employee on an H-1B Work Permit Quits?")

Don't I Have Any Rights to This Job?

The law considers H-1B employment “at-will” employment, meaning the employer has the right to terminate 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 also entitled to this benefit.

Consequences of Losing H-1B Employment  

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 dependent upon your employment status. Once you cease to be employed, it's likely that you also cease to be in lawful status, and will begin accruing unlawful presence -- a result to be avoided if you wish to leave the U.S. and return without being found inadmissible.  

When You're Supposed to Leave the U.S.

If you are not applying to your change your status in the U.S., then once your employment ends, you must leave the country. USCIS deems your status expired as of the day of your employment termination. A little silver lining to this dark cloud is U.S. immigration regulation 8 CFR 214.2(h)(4)(iii)(E), which requires H-1B employers to pay the reasonable costs of transporting H-1B workers back to their country upon termination of their employment. (Note that the employer is not required to pay the transportation costs of H-4 dependents.)

It is recommended that you leave the U.S. as soon as possible.    You may have heard that there is a grace period of ten days given to H-1B workers whose employment ends prematurely, 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, and the policy could change in the future.

How You Begin Accruing Unlawful Presence

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 petition approval. If you accrue more than 180 days of unlawful presence in the U.S., 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. For details on this, see Three-Year and Ten-Year Time Bars for Unlawful U.S. Presence.

How to Remain in Status After Losing a Job

There are multiple ways to remain in 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 is not always possible for your 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.

When applying for another H-1B, you will need to submit to USCIS evidence that you were maintaining your previous H-1B status. This evidence includes copies of your pay stubs. If, for example, you are applying for a new H-1B in August of 2014, and your most recent pay stub is from March 2014, USCIS may feel that you are not maintaining status, which can lead to problems for your immigration status.

Another way to remain in status 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. Again, it is 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 may be required to leave the U.S. and obtain a new visa.

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