In this month’s blog, we will address some of the steps that should be taken by Foreign National (FN) employees who hold H-1B status when their employment is terminated. We will also address some of the questions that are most frequently asked by FNs in this situation. The contents of this blog should not be interpreted as legal advice, and we strongly recommend that anyone in this situation retain legal counsel to provide advice on their specific situation.
Do I need to tell the United States Citizenship and Immigration Services (USCIS) that my employment has been terminated?
No. There is no obligation on your part to notify any government agency that your employment has been terminated. Please note, however, that, if you move your residential address within the United States as a result of your termination, you will have to report this to the USCIS within ten (10) calendar days by filing Form AR-11. This may be filed online.
Will my employer give me written notice of my termination?
Your employer is not required by federal immigration law to give you written notice of your termination, although it is the practice of most employers to do so.
Do I have to leave the U.S. immediately after my employment is terminated?
No. The USCIS allows a grace period of up to sixty (60) consecutive calendar days during each authorized validity period for H-1B nonimmigrant workers. The grace period starts on the day your employment ends and will last for 60 days or until your Form I-94 admission expires, whichever is earlier. During this grace period, you will not be considered to be violating your status and may seek another employer and have that employer file an H-1B petition on your behalf before the end of the grace period.
If you hold H-1B status, you may begin work with the new employer through H-1B portability upon the filing of an H-1B petition by this new employer. We have prepared a separate blog on the 60-day grace period that you can access here.
What will happen if I cannot find a new employer within 60 days?
If you remain in the United States for more than 60 days after your termination and have not had an H-1B petition filed on your behalf (or filed an application to change your status, as described below), you may be considered to be violating your nonimmigrant status. Please note, that, unless the date on your I-94 admission record has expired, you will not be considered to be accruing unlawful presence simply because you remain in the United States for more than sixty days after your termination. Accruing more than 180 days of unlawful presence will cause you to be deemed inadmissible to the United States for three years; accruing more than one year of unlawful presence will cause you to be deemed inadmissible to the United States for ten years.
Does this mean that I will be forced to leave the United States?
It is highly unlikely that any action by an immigration agency will be taken to remove you from the United States. The current administration’s immigration enforcement priorities are to target for apprehension and removal FNs who are a threat to the United States’ national security, public safety, and border security. Please note, however, that any FN remaining in the United States after violating his or her nonimmigrant status remains exposed to the possibility of removal or deportation, however remote.
If I leave the United States and subsequently find an employer that is willing to file an H-1B petition on my behalf, will this be subject to the H-1B Cap?
No. In this situation, your H-1B petition would not be subject to the annual H-1B Cap or numerical limitation and you would not have to participate in the H-1B lotteries held in March. The petition would have to be filed with a request for consular or port of entry notification since you are no longer in the United States. Once the petition is approved, you may enter the United States with a copy of the approval notice and a valid H-1B visa, even if this names a different petitioner.
What can I do if I plan to leave the United States, but need more time to take care of my personal affairs?
If, after your departure from your employer, you decide that you no longer wish to remain in the United States or are not able to take advantage of the 60-day grace period outlined above (because, for example, your I-94 admission record is expiring before the end of the period), but need to remain here to wrap up your personal affairs (such as selling a house or car), you may file an I-539 application with the USCIS to change your status to B-2 Visitor for Pleasure status for a limited period not exceeding six months. This application must be received by the USCIS before the end of the 60-day grace period or your period of authorized stay, whichever is earlier.
Can my change of status application to B-2 Visitor be expedited?
The USCIS’ Premium Processing service is currently available only for applications to change status to F-1, F-2, M-1, M-2, J-1 or J-2 status for a fee of $1750. The processing time for this service is thirty (30) calendar days. I-539 applications requesting a change to a different status may be adjudicated on an expedited basis if the potential of a severe financial loss is involved or if there is an emergency or humanitarian reason for expediting the application. A United States government interest may also warrant the expediting of the application. The granting of an expedite request is entirely discretionary.
Can I look for another job while the B-2 change of status application is pending?
Recent guidance from the USCIS suggests that searching for employment and interviewing for a job opportunity are permissible B-2 Visitor activities. Please note, however, that you may not join a new employer under H-1B portability after the 60-day period has expired and while your B change of status application is pending. Your new employer must file an H-1B petition on your behalf and this must be approved before you can start work. If your I-539 B-2 change of status application is pending when your new employer files its H-1B petition on your behalf under premium processing, the USCIS will generally process the pending I-539 application and the H-1B petition together during the premium processing timeframe and issue concurrent decisions. This means there should be no delay in the adjudication of the H-1B petition because of the pending I-539 B-2 change of status application. Please refer to this link for confirmation that this is the USCIS’ current practice.
Am I eligible to change status to another nonimmigrant status?
If your spouse holds H-1B status, you may file an application to change your status to H-4 dependent. You may also be able to apply for employment authorization if your spouse has started the green card process. Three-year H-1B extensions are available if an I-140 immigrant petition has been approved and the underlying priority date is not current. One-year H-1B extensions may be obtained if 365 days or more have elapsed since the filing of either the H-1B spouse’s PERM labor certification application or his or her I-140 immigrant visa petition.
If your spouse holds a different status that authorizes employment, such as E-1, E-2, E-3, L-1, O-1, or TN, you may also apply to change status to the appropriate dependent status. Spouses of E and L-1 nonimmigrants are eligible to accept employment incident to status and are no longer required to obtain USCIS employment authorization.
Can I go back to school in the United States?
If you are admitted to an educational institution in the United States, you may enroll in a course of study in F-1 student status. The educational institution must formally accept you and issue you a Form I-20 Certificate of Eligibility for Nonimmigrant Student Status. You may then file an I-539 form to change your status to F-1 (Premium Processing is available for this, as noted above) or leave the United States, obtain an F-1 visa, and reenter the country in F-1 status.
Please note that, if you enroll in a course of study at the same academic level as a course of study you previously completed and also completed a period of Optional Practical Training (OPT) following this earlier course of study, you will not be eligible for a grant of OPT following the second course of study. Thus, if you received a Master’s degree from a United States university and completed a period of OPT following the award of the degree, you will not be eligible for another grant of OPT if you complete another Master’s degree course, even if this is in a different field and at a different educational institution.
It is also possible to receive a grant of Curricular Practical Training (CPT) while enrolled in F-1 status at an educational institution. CPT allows the F-1 student to accept employment, provided that the employment involves training that is directly related to the student’s major area of study and is an integral part of the institution’s established curriculum. Those looking into enrolling in programs that offer CPT should be diligent about vetting the reputation and accreditation of the university, making sure to avoid enrolling with universities that have been subjects of visa fraud investigations or similar misconduct.
An FN contemplating a return to school in F-1 status should be aware that, starting in the fall of 2023, attendance at a fully online or remote course of study is no longer permissible and only one online class may be taken during each term or semester.
Will my employer notify the USCIS that I am no longer employed?
Since you hold H-1B status, your employer is required to notify the USCIS immediately of your termination and request a withdrawal of your H-1B petition. This notification will not affect your eligibility for the 60-day grace period described above.
If I receive a severance package from my employer, does this allow me to maintain my status or delay the start of the grace period?
No. Receipt of severance benefits from your employer after your employment ceases does not enable you to maintain your nonimmigrant status. It will also not delay the start of the 60-day grace period, which will begin as soon as your employment relationship with your employer is terminated.
What happens to the status of my dependents?
If your spouse and/or children hold dependent H-4 nonimmigrant status that is based upon your status, their status depends on your maintenance of status, and they will also be considered not to be violating status during the 60-day grace period.
May I apply for unemployment benefits after termination?
There has been little guidance on this subject. The California Employment Development Department (“EDD”) states that, to collect Unemployment Insurance (“UI”) benefits, the FN must show that he/she was in satisfactory immigration status and authorized to work in the United States when earning the wages used to establish his/her claim. The foreign national must also prove that he/she was in satisfactory immigration status, and authorized to work, each week that he/she claims benefits. If the EDD considers that you are in satisfactory status during the 60- day grace period, you should be eligible for UI benefits. If the agency decides that you are not eligible for them, it will deny your application. Most states require that unemployment benefit recipients be immediately available to accept employment. Your need for immigration sponsorship may be interpreted to mean that you are not immediately available to accept employment.
Generally, the receipt of unemployment insurance benefits is permissible under the limitations described above, but receiving any state-funded aid (such as welfare benefits) may create problems for your immigration status, and, in particular, your ability to become a permanent resident in the future.
Will I be provided with a return home airline ticket?
If you hold H-1B status and choose to leave the United States and return to your home county after your termination date, the reasonable cost of a one-way non-refundable economy class airline ticket to your home country will be offered by your employer for yourself. Travel expenses for your dependents and transportation costs for your personal effects will not be provided.
Please bear in mind that you should only accept payment from your employer for the cost of return transportation if you plan to leave the United States. If you accept such a payment but remain in the country, your employer may legitimately seek to recover this amount from you.
What happens if my employer does not provide me with the cost of return transportation?
USCIS regulations specifically allow terminated H-1B employees to advise the USCIS Service Center that adjudicated his/her petition in writing that the employer has not complied with this obligation. The USCIS has indicated, however, that it views the fulfillment of the cost of return transportation requirement as a matter of private contract between the employer and the terminated FN employee, and that it will not police the terms of arrangements entered into by the two parties. Employers may therefore impose terms such as placing a time limit on the acceptance of the offer by the FN and on his or her travel, requiring that travel arrangements be made through a particular agency or travel department, or requiring the FN to provide proof of all costs incurred if he or she made the relevant travel arrangements.
What if I am reaching the end of my H-1B maximum allowable period of stay and am no longer employed by my employer?
You will continue to be eligible for future one-year extensions of your H-1B status for employment with a new employer after the six-year maximum, as long as your employer’s PERM labor certification application was filed before the end of your fifth year in H-1B status. If you received an I-140 petition approval over 180 days ago, and an immigrant visa is unavailable to you because your priority date is not current, you will continue to be eligible for three-year extensions of your H-1B status and may retain your original priority date in the event another employer begins an employment-based green card process for you in the future. If neither of these options are available, then you must either depart the United States or may file for a change of status request as described above before the end of your applicable grace period or period of authorized stay.
How will my termination affect my green card process?
Your green card process, which is based on an offer of permanent employment from the employer whose employment you have left will generally cease upon your departure. Please see more specific questions and answers below. There are, however, circumstances in which you may be able to retain certain benefits associated with an approved I-140 and/or “port” a pending I-485 Adjustment of Status case to a new job offer with a different employer. Please see the more specific questions and answers on these scenarios below.
My employer has a PERM labor certification application filed and pending for my position, and/or an I-140 petition filed and pending. What happens to those filings upon termination?
Your employer will typically take no further action on a pending PERM application or an I-140 petition after your termination.
What happens to my approved PERM labor certification application or I-140 immigrant petition if I am no longer employed by my employer?
Unless, as discussed below, you are an adjustment of status applicant, portability of your employer’s PERM labor certification application and I-140 petition to another employer is not permitted. Your green card process will therefore come to an end as soon as you leave your employer. The I-140 approval cannot be transferred to another employer, and a new employer must start the process from scratch for you. As noted above, however, if your employer’s I-140 petition has been approved, you may retain the priority date from that petition in a new I-140 petition filed for you by a new employer, provided 180 days have passed from the date this petition was approved.
My I-140 petition has been approved. Can I proceed with the filing of an adjustment of status application after termination?
No. The law requires that at the time you file your adjustment of status you intend to take up the position described on the I-140 immigrant petition and that the employer filing the petition intend to continue to employ you in that position. This would not be the case if you are no longer employed by your employer.
What happens if my adjustment of status application has been pending for over 180 days?
If you have an adjustment of status application that has been pending for at least 180 days, and your I-140 petition has been approved, you may accept new employment with a new employer in the same or a similar occupational classification as the position described in your employer’s I-140 petition and continue the green card process begun by your employer.
Per USCIS guidance, you may also engage in self-employment (for example, as a consultant), as long as this employment is in the same or a similar occupational classification as the position described in your employer’s I-140 petition. There is no specific time frame after your departure from your employer for finding new employment, but you must have secured such employment by the time your adjustment of status application is approved. You should consult with your personal immigration attorney for legal advice on this issue.
What happens if my adjustment of status application has been pending for less than 180 days?
You will not be eligible for the adjustment of status portability mechanism described above. The law allows you to become a permanent resident if the job for which your employer received the PERM certification still exists and the employer intends to have you fill it once your adjustment of status application is approved. If your employer no longer has a job offer for you, the certified job offer is no longer valid, and the adjustment of status process should not proceed. You should consult with an immigration attorney for legal advice on this issue.
I have an adjustment of status application pending. How long can I remain in the United States after leaving my employer?
There are no regulations defining how long you may remain in the United States if you are an applicant for adjustment of status based upon a PERM certification and an I-140 petition and your employment is terminated. Because a variety of factors need to be assessed to determine the impact of your termination and the effect it has a pending adjustment of status application, you should seek advice from an immigration attorney to determine if you need to take any steps to remain legally in the United States.
I have heard that there is a “Compelling Circumstances” Employment Authorization Document (EAD) available to terminated employees. Is this an option for me?
The USCIS may in its discretion grant a Compelling Circumstances EAD to an FN who is in the United States and faces compelling circumstances that may cause him or her to lose his or her employment and/or leave the United States. The FN must have an approved I-140 immigrant petition and must not be able to file an adjustment of status application because the relevant priority date is not current. The EAD, if granted, will allow the FN to accept employment from any employer in the United States.
Persons considering the option of filing a Compelling Circumstances EAD application should be mindful that the use of such an EAD will render the holder ineligible to extend or change nonimmigrant status. An FN in H-1B status who uses a Compelling Circumstances EAD would thus have to leave the United States and reenter with a valid H-1B visa in order to be in H-1B status again. The filing of an adjustment of status application is also prohibited for persons who have used this EAD and an immigrant visa must be sought at a United States consulate. Because of these restrictions, this is not an attractive option and relatively few Compelling Circumstances EADs are issued.
Does the USCIS have any informational resources for persons in my position?
Yes. The USCIS has posted an Options for Nonimmigrant Workers Following Termination of Employment informational summary and alert on its website. These are designed to explain the options available to FN employees to remain in the United States after employment termination and provide considerable insight into the agency’s position on various issues affecting such employees.
While USCIS resources can be helpful, determining what the next best step is for you when faced with an unexpected termination of your H-1B employment often depends on a broad range of factors that must be carefully considered. Reaching out to a trusted immigration attorney and/or legal team promptly to help guide you through tough and often complicated decisions is critical to preserving as many options for you and your family as possible.
If you are in need of advice involving the topics discussed in this blog today, T&S’ team of immigration experts can help. Please contact our team for a consultation.