Maintaining H-1B Status after Early Termination of Employment

December 30, 2022
Ryan Belliston

For over 200 years, the U.S. has welcomed migrants from all walks of life who have come to its shores seeking stability, freedom, and better employment opportunities. Even now, thousands of foreign nationals apply for H-1B status with the hope of getting a job in the United States. The competition for this status is very fierce, and anyone who manages to acquire it is considered very fortunate. But what happens when a foreign national’s employment in the U.S. is suddenly terminated due to unforeseen circumstances or company downsizing? Can they find another job, or do they have to leave the U.S.? In the event of an early termination of employment, foreign nationals on H-1B status have the option to find another employer in order to maintain their status.      

What is H-1B Status?

The H-1B program allows U.S. companies to hire foreign nationals for specific needs that cannot be filled by American workers.  H-1B categories include: 1) Specialty Occupations, requiring a Bachelor’s Degree or higher (H-1B); 2) Department of Defense Researcher and Development Project Worker (H-1B2); and 3) Fashion Models (H-1B3).  Foreign nationals with H-1B status can work in the U.S. for the company that petitioned them for an initial period of three years, and can renew their authorization up to 6 years. H-1B status is obtained in the U.S. through change of status, or outside the U.S. through consular processing, but we will primarily focus on the H-1B application process while in the U.S.  

Grace Period

Foreign nationals who get laid off from their job prior to their status expiry date don’t have to immediately leave the country. According to U.S. Citizenship and Immigration Services (USCIS), if a foreign national on H-1B status is let go from the company that petitioned them, they have 60 consecutive days (or up to the expiration date of their visa if it is less than 60 days), to find another company who will hire them.  

New Employment

When a new company is found and agrees to hire the unemployed foreign national on H-1B status, the company needs to file a new H-1B petition for the employee. This process includes submitting a new ETA-9035 Labor Condition Agreement to the U.S. Department of Labor, and Form I-129, along with filing fees and supporting documents to USCIS. This process on average takes 2.5 months to complete depending on U.S. Department of Labor and USCIS case processing times, which are subject to change.

What a H-1B status holder should know

Be Aware of Time

  1. If a foreign national has been notified they are going to be laid off, they should talk with their manager as soon as possible to determine when their last date of employment will be. After that date will start the grace period. Since the immigration process takes time, and the grace period is limited, careful planning is required by the foreign national to ensure they find new employment and complete the immigration process on time.

Actively Search

  1. Finding a company willing to commit will be the biggest challenge so using all resources available is necessary including: family, friends, co-workers, social media, networking sites, church and non-profit organizations to reach out to as many companies as possible.  

Helpful Documents

  1. To ensure a smoother transition between jobs, foreign nationals are encouraged to collect detailed documents showing their employment history, the reasons for being let go, tax documents, and any letters of recommendation or certifications from their previous employer. These documents will be presented to USCIS with their new application to show proof of their continued qualification for H-1B status.  

Hire an Attorney

  1. Working with the U.S. Department of Labor and USCIS can be very stressful due to the specific requirements and procedures involving H-1B applications. It is wise to consult an attorney who has experience in immigration law to help you navigate the process.  

Working in the U.S. on H-1B status is quite an achievement, but it isn’t always set in stone. Unforeseen circumstances outside of a company’s control or economic hardship may occur and can impact the job security of foreign nationals working for them. In the event of early termination of employment, foreign nationals on H-1B status do have the option and resources available to find another employer and maintain their status.  

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