Nonimmigrant workers may have several options for remaining in the United States following termination of employment. Some options are a 60-Day Grace Period, Portability to a New Employer, Change of Status, and Adjustment of Status, among others.
60-Day Grace Period
Workers (and dependents) in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications have 60 consecutive calendar days after the end of the authorized validity period, to remain legally in the United States.
During this period, individuals can maintain their nonimmigrant status by applying to change to a new nonimmigrant status (such as B-2 visitor status or F-1 student status). If workers are unable to maintain their current status, timely file a change of status application, or adjustment of status, may be required to depart the United States at the end of their grace period.
Portability to a New Employer for H-1B and Adjustment of Status Workers
Workers under H-1B status are allowed to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved.
Additionally, some workers with an adjustment of status application (Form I-485) pending for at least 180 days can “port” (transfer) the immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer.
Change of Status
Change of status includes changing to a dependent of a spouse. Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status.
Other commonly used nonimmigrant options to change status include student status (F-1) or visitor status (B-1 or B-2).
If an individual files an application to change status before the end of the 60-day grace period, the individual will not accrue unlawful presence while the application remains pending. If the application is approved, the individual’s status is successfully changed. If the application is denied, the individual starts to accrue unlawful presence the day after the denial decision.
Change of Status and Employer
Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored nonimmigrant status in the same or different status. The filing of a change of status in this instance will not confer employment authorization in the new position as the application remains pending. Additionally, the applicant’s employment authorization will not be extended or have validity. The applicant may be eligible for premium processing.
Adjustment of Status
Some individuals may file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Some immigrant classifications that are eligible for self-petitioning include EB-1 Extraordinary Ability, EB-2 National Interest Waiver, or EB-5
Immigrant Investors. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD).
Call our office at 1(800)951-4980 to learn if your specific case applies to this self-petition option.
Departure from the United States
Workers under H-1B and O status who choose to depart the United States after involuntary employment termination, have the right to have transportation costs to the worker’s last place of foreign residence covered by the H-1B employer or by the O employer and O petitioner.
Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for the remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States.
Our experienced attorneys at Garvish Immigration Law Group can help you create a plan of action should you face termination of employment. The first step is to schedule a consultation and discuss your case with one of our lawyers.