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.
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.
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.
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.
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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.