H1B Visa layoff

Depending on the circumstances, an H1B Visa holder that loses their employment or fails to renew before it expires might be eligible for a grace period allowing them to remain in the US while they take action to preserve their legal status. But there are a lot of rules to consider, and breaking the rules could mean “unlawful presence.” We review being laid off or fired while on an H1B visa and what to do here.

What are the H1B Visa Grace Periods?

If you have been laid off or fired while on an H1B visa, there are two periods that allow you to take steps to leave the United States or transfer to a new employer. US Citizenship & Immigration Services (USCIS) has established the following grace periods in limited circumstances for H1B Visa holders that have been laid off or fired:

  • H1B Visa 10-Day Grace Period. The 10-day H1B Visa grace period allows you to prepare to depart the US or take other actions to extend, change, or otherwise maintain lawful immigration status. The 10-day H1B visa grace period is calculated from the last day of your H1B Visa status from your USCIS Form I-797 Approval Notice, or your I-94 admission record, whichever comes first.
  • H1B Visa 60-Day Grace Period. The H1B Visa 60-day grace period allows you to take action to preserve your immigration status in the US without penalty if your H1B Visa status was still valid when your employment ended. The grace period is calculated from your last day of employment and cannot go beyond the expiration of either your USCIS Form I-797 Approval Notice or your I-94 admission record, whichever comes first.

Can I work while the H1B Petition for change of employer is pending?

Yes. If you are using the grace period for a change of employer, you can continue to work during the grace period. This falls under the “240-Day Rule” which allows a foreign employee who has a pending H1B visa petition that was filed on their behalf to work for a new employer under an H1B transfer for up to 240 days (8 months) or until such a renewal application is denied.

What happens if I get fired or lose my job?

H1B Visa status is employer-specific. This means that an H1B Visa only authorizes you to work for the employer under the conditions the H1B Visa was approved. If the conditions of the employment change significantly, including termination of employment, the H1B Visa becomes invalid. You will require a new H1B visa for a new employer and position before changing employers.

What happens if I fail to renew my H1B Visa before it expires?

If your H1B Visa has expired or is about to expire, you automatically have a 10-day grace period to either depart the United States or file for a renewal (“Extension of Status”) with USCIS. The 10-day grace period is calculated from the last day of your H1B Visa status from your USCIS Form I-797 Approval Notice or your I-94 admission record, whichever comes first.

What is “unlawful presence?”

If you are not careful you can accrue unlawful presence. Losing your job or failing to file to preserve your H1B Visa status with USCIS within either the 10-day or 60-day grace periods could mean you’re out of status. Remaining in the United States beyond your authorized period of stay on an H1B visa can result in the accrual of “unlawful presence” and a bar from re-entering the United States.

Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary. You may be barred from being admitted to the United States for:

  • 3 years, if you depart the United States after having accrued more than 180 days but less than one year of unlawful presence during a single stay and before removal proceedings begin;
  • 10 years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or
  • Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

Failure to maintain your H1B Visa, or to depart in a timely manner after the loss of employment, may lead to your ineligibility for future travels to the United States in any status.

What should I do to preserve my immigration status?

In general, the following options generally apply to maintain lawful immigration status after the loss of a job while on an H1B visa:

  • File for a new H1B Visa through USCIS Form I-129. You will have no more than 60 days to file for a new H1B Visa while applying during either the 10-day or 60-day grace period.
  • File for a change of status through USCIS Form I-539. A change of status is generally filed to change to dependant status, i.e., TD Visa, H-4 Visa, etc., or to business visitor status (B-1 or B-2).
  • Depart the United States. If you are not able to find new employment or file for a change of status within the allotted grace periods, you should make arrangements to depart the United States as soon as possible to avoid accruing unlawful presence.

As an employer, what do I need to know about H1B Visa extensions and renewals?

How do I extend or renew my H1B visa and can I extend it beyond 6 years?

How do I transfer my H1B Visa to a new employer?

Additional Outside Resources

We Can Help!

Don’t know where to start? The immigration lawyers at Richards and Jurusik Immigration Law have hundreds of 5-star client reviews and more than 30 years of experience helping foreign nationals who have lost jobs or made employment changes to obtain new H1B Visas. We always start with a free case assessment and offer several levels of H1B Visa legal services to fit your needs.

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