U.S. Citizenship and Immigration Services (USCIS) is providing information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. These workers may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations. It is important for nonimmigrant visa holders to understand their options to lawfully remain in the U.S. after termination of employment. First and foremost, nonimmigrant workers need to be aware that regulations permit a discretionary grace period that allows certain nonimmigrant workers, such as H-1B, L-1, and TN holders (and their dependents), to be considered as having maintained status following the termination of employment for up to 60-days or until the date their I-94 expires, whichever comes first. Eligible nonimmigrant visa holders cannot work during this grace period, but they will remain eligible to change employers or change immigration status.
The following options may be available to certain nonimmigrant workers seeking to lawfully remain in the U.S. following termination of employment:
H-1B Portability
Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Therefore, if a new employer files an H-1B “transfer” within the 60-day grace period as described above, the nonimmigrant visa holder can continue to remain and work in the U.S.
Change of Status to a Different Nonimmigrant Visa Status Allowing Work Authorization
Eligible nonimmigrant workers can use the 60-day grace period to not only find a new employer, but to file a change of status to a different nonimmigrant classification. For example, an individual in L-1 status may be eligible under the TN, E-3, or H-1B1 classifications. Please note that when filing a change of status, the individual cannot work in the new visa classification until the change of status is approved. However, the timely filing of a change of status application will prevent the accrual of unlawful presence until the application is adjudicated.
Become the Dependent of a Nonimmigrant Spouse
Eligible nonimmigrant workers may use the 60-day grace period to apply for a change of status to, for example, H-4 or L-2 to become the dependent of a nonimmigrant spouse. Moreover, some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants. Also, some H-4 dependents may be eligible for an Employment Authorization Document (EAD) if their H-1B spouse has an approved I-140 immigrant petition.
File a change of status to F-1 or B-1/B-2
Eligible nonimmigrant workers may use the 60-day grace period to file a change of status to an F-1 student visa or B-1/B-2 visitor visa. Please note however that B-1/B-2 does not allow an individual to work while in the U.S. Further, F-1 students can only work under very limited circumstances.
Adjustment of Status
Some nonimmigrant workers may be eligible to self-petition for an immigrant visa concurrently with an adjustment of status application if they qualify under the EB-1A, EB-2 NIW, or EB-5 categories (and their priority date is current). Workers with a pending adjustment application are generally eligible to remain in the U.S. and obtain an EAD. Note that it will take time for the EAD to be issued and an individual under these circumstances cannot work until the EAD is in hand.
Compelling Circumstances EAD
Eligible nonimmigrant workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:
- Do not have an immigrant visa immediately available to them, and
- Face compelling circumstances.
Issuing a compelling circumstances EAD is discretionary and is a stopgap measure intended to assist certain individuals already on the path to obtaining a green card through employment by preventing the need to abruptly depart the U.S. It is important to note that individuals working on a compelling circumstances EAD will not be maintaining nonimmigrant status but will instead be considered to be in a period of authorized stay and most importantly will not accrue unlawful presence while the EAD is valid.
Expedite Criteria
Some circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization. For example, an application to change status from H-1B to L-2 may be eligible for expedited adjudication to prevent severe financial loss.
Departure from the United States
Workers may choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner.
Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States.
This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
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