I've been working in the U.S. as a software engineer with an H-1B visa for more than a year now. My employer just informed me that my last day of work will be this Friday. Apparently, the company is going through a restructuring, and my job is being eliminated. Does my H-1B visa allow for any grace period, or will I be out of status or "illegal" after my job ends? Can I ask for another visa to look for a job?
We're sorry to hear you're losing your job. That became an especially common scenario after the start of the coronavirus (COVID-19) pandemic, which caused many businesses to struggle. For more on that specific concern, just in case another pandemic comes along, see How H-1B Workers Can Maintain Legal Status During Coronavirus Pandemic.
More generally speaking, you might have a few options to maintain lawful immigration status, as reviewed below. It's important that you do everything possible to maintain lawful status. If U.S. Citizenship and Immigration Services (USCIS) finds that you are "unlawfully present," you could face harsh legal consequences, particularly after six months go by.
To answer your first question, there is a 60-day maximum grace period for an H-1B worker once the employment ends. Therefore, if your job ends Friday, you will have a maximum of 60 days to arrange for another employer to submit an H-1B petition for you, change to another status, or depart the United States. The H-1B visa category requires you to be working and getting paid, as outlined in your employer's H-1B petition, in order to maintain lawful status. Once your employment ends, you're not maintaining status, but the regulation gives you up to 60 days to get your status in order.
The regulations provide for a 60-day maximum grace period for unemployment between H-1B employers. As long as you're actively looking for a job and can show that you've submitted applications, corresponded with prospective employers, or interviewed for new jobs, you're likely to get the full 60 days for your next H-1B employer to submit its petition for you.
On the other hand, if you do nothing for 59 days, and then suddenly have a petition submitted on day 60, USCIS might not approve the status extension part of the petition, and you might need to make a trip home to get a new H-1B visa in your passport before continuing to work for your new H-1B employer.
If it's been more than 60 days since the last H-1B job ended, and you're still in the U.S., the safer course of action is to have the new employer file a petition without a request to extend your status. In this case, once USCIS approves the petition, you would travel outside the U.S., obtain an H-1B visa at the U.S. consulate abroad, and then return to the U.S. to start working for the new employer. The benefit with this option is that it avoids the question of whether you were maintaining status.
If you happen to have a spouse who also is working in the U.S. with an H-1B visa, you can file an application to change your status from H-1B to H-4 dependent. As long as your spouse is maintaining lawful H-1B status, you can remain here in H-4 status. This would give you time to apply for work authorization as an H-4 and then get a new job. Submit your H-4 change of status application as early as possible during your 60-day grace period.
Again depending upon your situation and the time of year when you lose your job, you might be able to change to F-1 status to pursue another or a higher degree in a full-time academic program.
Many people ask about filing an application to change from H-1B status to B-2 visitor status to remain in the U.S. to search for a new job. This is problematic, because searching for a job is not an appropriate "tourist" or visitor-for-pleasure activity. Also, if you find a new job before USCIS approves your B-2 status, you almost certainly will need to take a trip back to your home country to get a visa to reenter the United States in your new job status. USCIS will not process an H-1B petition for an extension of status if there is a pending B-2 application. Only in limited circumstances is it even worth considering a B-2 tourist application and only after consulting with a licensed immigration attorney.
The last option you have is to receive the cost of your return transportation to your last country of residence abroad. If an H-1B employer terminates an H-1B worker, the employer must offer to pay for a flight to allow you to return to your home country, or to your last country of residence abroad. If you leave the employer on your own, this requirement does not apply.
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