Options for H-1B Workers Who Want To Remain in the U.S. After Their Employment Is Terminated

Options for H-1B workers who want to remain in the U.S.
January 5, 2023

There have been many layoffs in the tech sector in 2022, leaving many H-1B workers desperate to find another employer. Because of the large number of dismissals, the United States Citizenship and Immigration Services (USCIS) has provided information for these workers about their options to remain in the United States.

Here are some options provided by the USCIS:

60-Day Grace Period

Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications, along with their dependents, can use a discretionary grace period to maintain their status after employment has ended. The discretionary period is for the shorter of up to 60 consecutive calendar days or the end of the authorized validity period.

This period could allow workers to maintain their non-immigrant status if they obtain another job. However, the employer must file a petition for the worker with an extension of stay request in a timely manner. If eligible, workers may also apply to change their non-immigrant status or for an adjustment of status to stay in the United States.

Portability to a New Employer

Portability rules allow H-1B workers to start working for a new employer once the employer files the new H-1B petition with the USCIS. They do not have to wait for the USCIS to approve the petition.

Suppose a worker has an adjustment of status application that has been pending for a minimum of 180 days with an underlying valid immigrant visa petition. In that case, they can transfer the underlying valid immigrant petition to a new job in the same or similar occupation with the same or a different employer.

Period of Authorized Stay – Compelling Circumstances Employment Authorization Document

Workers with an approved employment-based immigrant visa petition could obtain a compelling circumstances EAD for up to a year. However, they cannot have an immigrant visa in the Department of State’s Visa Bulletin. In addition, they must prove their compelling circumstances.

Expedite Criteria

In some situations, a non-immigrant could obtain an expedited adjudication. This situation may include an application to change status to dependent, which comes with the eligibility for employment authorization.

Leaving the United States

Suppose an H-1B or O worker chooses to leave the United States after having their employment terminated involuntarily. In that case, the employer must pay for the worker’s transportation to their last place of foreign residence. However, once the H-1B worker lives abroad, they may seek employment and readmission to the United States as long as their H-1B status remains valid.

Any employer that hires an H-1B worker must complete Form I-9. This form can prove challenging due to the complex documentation requirements when confirming employment authorization. One of the best ways to simplify this process is with an electronic I-9 management tool. This tool can guide employers through the process and safely store all documentation for review at any time.

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