A Guide for H-1B Workers Whose Employment Is Nearly or Already Terminated – A Resource by the NPZ Law Group

The H-1B visa has been vital in allowing foreign workers in the tech industry to work in the United States. However, more than 40,000 tech workers were recently let go from their jobs. Therefore, many nonimmigrant workers with this visa may be facing termination or are at risk of termination. This article is a guide for those individuals.

A Grace Period For Terminated Workers

Since January 17, 2017, nonimmigrant workers with the following visas have a grace period of 60 days after termination.

• E-1
• E-2
• E-3
• H-1B
• H-1B1
• L-1
• O-1
• TN

They can use this grace period to seek employment at another US company/employer or gain another visa to allow them to remain in the United States. If nothing works out, they must depart the country within these 60 days.

Severance Periods Do Not Count as Employment:

If an employer offers an employee severance, i.e., continuing to pay them for several months without the employee offering any productive services, then the start of the severance period will count as their termination. Therefore, the 60-day grace period will begin from that point because the worker has been put under ‘non-productive status.’ However, workers who are put in this status because of reasons protected by law (i.e., disability) will not lose their visa status. The laws in question include the Americans with Disabilities Act and the Family and Medical Leave Acts.

Terminated workers who have already begun green card employment sponsorship are also not permitted to stay in the US. However, they may retain the I-140 petition (immigrant petition) priority date filed by their previous employer. This is only if the new employer files a new PERM labor certification and obtains an approval of the subsequent I-140 petition.

What Nonimmigrant H-1B Workers Facing Termination Should Do:

1. The nonimmigrant H-1B worker should consult a qualified immigration attorney to explore and understand what options he or she can take to prolong their stay in the country.
2. Terminated H-1B workers must be cognizant of the fact that they have a grace period of 60 days to seek employment at another US company/employer, gain another nonimmigrant visa, or depart the United States. Thus, the worker must not delay the first step.
3. The terminated H-1B worker should consider the following potential options:

a. Enroll in a graduate or other higher education program and seek F-1 visa status.
b. Apply for a visa status change to H-4 dependent visa holder if the terminated worker’s spouse has an H-1B visa. Except under spectial circumstances the H-4 dependent visa holder most likely will not be able to seek employment while holding this status.
c. Foreign workers that depart the United States after the grace period of 60 days and later obtain a job at a company with operations in the US and other countries may be eligible to apply for L visa status. The worker may only be eligible if he or she works abroad (outside of the US) for that employer for a minimum of 1 year in a “managerial” or “specialized knowledge” position. Moreover, a foreign worker that held H-1B status before may be allowed to “recapture” the remaining period that may not have been used during his or her previous H-1B status.

If you have any questions about how the immigration and nationality laws in the United States may impact you or your family members or if you want to access additional information about the United States or Canadian immigration and nationality laws, please feel free to get in touch with the immigration and nationality lawyers at NPZ Law Group. You can send us an email at info@visaserve.com or call us at 201-670-0006 extension 104. In addition, we invite you to find more information on our website at www.visaserve.com