Q: I am in H-1B status. My company recently eliminated my position and terminated my employment. What are my options?
A: Immigration regulations permit a discretionary grace period that allows workers in H-1B status and their dependents to be considered as having maintained status in that same classification after the end of employment for up to 60 consecutive calendar days after termination (or until the end of the authorized H-1B validity period, if shorter). This also applies to workers in E-1, E-2, E-3, H-1B1, L-1, O-1, or TN status.
During the 60-day grace period, H-1B nonimmigrants may file a change of status application to another nonimmigration classification, such as B-2, F-1, or H-4 dependent (if applicable). Alternatively, if a new job offer is received from another U.S. employer, the new employer may file a change of employer petition on behalf of the H-1B nonimmigrant. A major benefit of this option is that the H-1B nonimmigrant can begin work immediately after the U.S. Citizenship and Immigration Services (USCIS) receives the petition, and there is no need to wait for the approval. Another benefit of the 60-day grace period is that a dependent spouse’s H-4 EAD remains valid for employment during this time.
A third option for the H-1B nonimmigrant could be an application for an employment authorization document based on compelling circumstances. However, USCIS will only issue an independent grant of employment authorization to individuals with an approved I-140 petition, a non-current priority date, and compelling circumstances. According to USCIS, examples of compelling circumstances could be a serious medical illness or disability, termination due to employer retaliation, or evidence of substantial harm (financial or otherwise).
It is important to note that an H-1B nonimmigrant cannot travel internationally during the 60-day grace period, as any departure from the U.S. immediately ends the grace period. The H-1B nonimmigrant would not be permitted to re-enter the U.S. pursuant to H-1B status (without a new H-1B petition approval and valid H-1B visa). Similarly, if the H-1B nonimmigrant is outside the U.S. when terminated, he/she is not eligible for the 60-day grace period.
Finally, if none of the other options are appealing to the H-1B nonimmigrant, he/she may choose to depart the U.S. If involuntarily terminated, the H-1B nonimmigrant’s former employer must pay reasonable costs of return transportation to the H-1B nonimmigrant’s last place of foreign residence.
Know the Law is a bi-weekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.