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What Happens When the H-1B Employment Ends?

H-1B Status, Downsizing, and Immigration Options
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The general economic downturn in the U.S., and resultant company downsizing, have various effects on H-1B visa holders. Accurate specific information should be obtained as soon as an H-1B employee knows that employment may be terminated, so that the employee may maintain his or her valid nonimmigrant status and thus avoid the consequences of status violations and unlawful presence.

The consequences of falling out of status or working without authorization, are that one may become deportable, or may have difficulty getting a subsequent visa issued at a U.S. consulate. Persons who have been "unlawfully present" for more than six or twelve months and then depart the U.S., will be subject to waiting periods of three and ten years, respectively, before they can return. Because the determination of status violations and "unlawful presence" are legally complex issues, legal advice should be sought based on individual circumstances.

As soon as the H-1B employee learns of the employment change, the employee should develop a strategy to change to another status or depart the country. There are many options available, and individual cases present different alternatives based on the specific circumstances. For this reason it is advisable to consult extensively with an immigration attorney before making up your mind.

Among the most common changes of status are changing to H-4 status (if your spouse is an H-1B worker), changing to F-1 student status (to resume or commence academic study) or an H-1B transfer to another employer. (Under the portability provisions of the new law, an H-1B transfer can be done in a couple of weeks instead of months.) Canadian and Mexican citizens may be able to quickly reenter the country under TN status.

If a new job is not readily at hand, the employee may consider filing an application to change status to that of Visitor for Pleasure (B-2) or Business Visitor (B-1). If this is done, however, it should be done carefully with full disclosure of the person's intent, so that INS does not later claim that you made a misrepresentation.

The most frequently asked question is "How Long Do I Have?" Unfortunately, there is no conclusive answer to this question. The INS has announced that there is no legally recognized "grace period" after the H-1B employee leaves the employer, and by which time a change of status application should be filed. Although INS has informally advised that 30-60 days should be acceptable where the employee is transferring to another H-1B employer, and INS has accepted change of status applications to F-1 student or B-1/B-2 visitor status, where several days or even several weeks have passed after the H-1B employment termination, this cannot be relied on.

There may be other options available if your employer sponsored you for permanent residence, and your I-485 "adjustment of status" application is on file with the INS. For example, if your I-485 adjustment application has been pending for over six months, you may be able to seek and initiate new employment without having to start the green card process again. (You would need to have a new job offer in a similar position in the same industry as your prior sponsorship.) (Unfortunately this is not currently available to those who are doing their green card process from abroad as "consular processing." In that case the green card sponsorship will have to be undertaken anew by the new employer, after an H-1B transfer.)

There may also be immigration options if you have permanent resident or U.S. citizen family members, if you have been present in the country for over ten years (and have LPR or U.S. citizen family members), or if you have a fear of persecution in your home country.

Each of these issues is complex and subject to change, based on new interpretations and INS policy changes. For this reason the above information should not be considered legal advice, and should not be relied upon as such. For specific legal advice a qualified immigration attorney who specializes in the area of your concern, should be contacted.

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