Termination of Employment: Strategies for H-1B Employees

As discussed in our previous article, Employer Responsibility for Terminating H-1 Employee, an employer can terminate the employment of his H-1B worker by following certain steps.  In this article, we will discuss the options and strategies available to H-1B worker to safeguard his immigration status.  

Contrary to popular belief, there is no grace period of “10-day” or “30-day” given to H-1B workers following termination of H-1B employment.  An H-1B employee is out of status once his/her employment relationship with the employer ends.  Additionally, payment of severance payment or pay without reporting to work does not grant valid status to the H-1B employee. 

Terminated H-1B employee with plans to join a different employer in H-1B status or change status to another nonimmigrant status should plan to file the petition before the final day of H-1B employment.  Remaining in the U.S. after termination of employment without changing status or filing an application for extension of stay (EOS)/change of status (COS) leads to violation of status. However, U.S. Citizenship and Immigration Service (USCIS) in its discretion may forgive minor status violation on a case-by-case basis and grant EOS or COS.  It is important to be mindful that in order to get a favorable discretion, the status violation should be of a very short duration.  If the USCIS chooses to favorably exercise discretion, the EOS or COS is approved with an I-94 card.

It is noteworthy to mention, revocation of an H-1B petition by the previous employer after an EOS or COS has been filed does not negatively impact the pending application.  As long as the person maintained his/her previously afforded status before the new application is filed, the new status will be approved.  If the person did not maintain his/her previous status and further if the USCIS does not favorably exercise the discretion, the beneficiary will be directed by the USCIS to depart the United States and also will be required to apply for a new visa at a U.S Consulate in his/her country of origin. 

Each individual H-1B termination will present a unique set of circumstances & challenges that may require detailed legal analysis by an experienced attorney.  We at Sharma Law Offices have extensive experience in presenting such requests to the USCIS for a successful outcome for our clients.  Employees with questions regarding options available to them after termination are encouraged to contact our office.