H-1B EMPLOYEES ARE OUT OF
STATUS THE INSTANT THEIR EMPLOYMENT IS TERMINATED
On March 27, 2001, a
senior INS official confirmed that present INS policy
provides that an H-1B employee goes out of status as soon as
his or her H-1B employment is terminated (i.e., he or she
quits or is fired). There is no grace period, not even a
few weeks or days, in which to find other employment.
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This radical and unrealistic
interpretation of the laws is significant for many reasons.
The first is that the H-1B worker is “removable”
(deportable) on the day the employment ends.
The second and more
likely consequence is that the H-1B employee can no longer
extend the H-1B status (through the H-1B petition of another
employer) or change to another nonimmigrant status. (The
INS generally requires now paycheck stubs to be submitted
with the H-1B petition as proof of maintenance of status).
The result may be that in order to work for another H-1B
employer the employee must leave the U.S., then return after
the new H-1B petition is approved.
There are several
possibilities for avoiding this result. The policy letter
confirms that the late filing of the new petition to extend
H-1B status can be excused due to “extraordinary
circumstances.” Also, an employee who continues to receive
his or her salary is considered to be “benched”, and still
in valid H-1B status, if the salary promised on the H-1B
petition continues to be paid. Terminated H-1B employees
should therefore try to negotiate a continuation of the
employment relationship (through continuation of the salary)
until a new job offer can be found and a new H-1B petition
submitted. Finally, before the actual termination date, the
employee may be able to remain in a valid nonimmigrant
status by filing an application to change to another
nonimmigrant status (such as visitor's or student status).
Update, December 9, 2008.
The USCIS confirms this policy in response to increased
layoffs and business failures: "If the underlying H-1B
petition is already approved, the general rule is that the
approval of any petition is automatically revoked if the
petitioner goes out of business, as the employer-employee
relationship has ended. If the [USCIS] determines
ineligibility based on information not contained in the
record of proceeding, the petitioner will first be put on
notice with intent to revoke but will be given the
opportunity to overcome with evidence of a
successor-in-interest to the original petition. Once the
underlying H-1B petition is revoked, the Beneficiary's H-1B
status terminates as of the date the employment ceased,
Matter of Lee, 11 I. & N. Dec. 601 (Reg. Comm.
1966), or the date the petition was revoked, whichever is
later. The Beneficiary is in violation of status the day
after the employment was terminated." (AILA/VSC Liaison,
Despite this guidance from
the USCIS, we have found in our practice that a period of
unemployment of less than 30 days (between successive H-1B
employers) does not defeat a petition for change of
employers or extension of H-1B status.