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. Depending upon your situation, you may 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 no grace period for an H-1B worker once the employment ends. Therefore, if your job ends Friday, you will not be maintaining lawful status as of Saturday. The H-1B visa category requires you to be working and getting paid, as outlined in your employer's H-1B petition, to maintain lawful status. Once your employment ends, you're not maintaining status. But as noted, you may have some options.
Find Another Job Quickly
The regulations do not provide a grace period for unemployment between H-1B employers. Nevertheless, USCIS generally approves petitions to change from one employer to the next if the gap between jobs is short. You're probably safe if it's a week or less, and anything up to 30 days gives you a chance.
What this means in practical terms is that you have a month in which to find a new job and have the new employer file an H-1B petition for you. If the next employer's petition is filed more than 30 days after you lose your job, the odds that USCIS will approve it decrease significantly. In most cases, if it's been more than 30 days since the last H-1B job ended, 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.
If You Have an H-1B Spouse: Change to Dependent H-4 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 to H-4 as a 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.
If a College or University Accepts You for a Full-Time Program: Change to F-1 Student Status
Again depending upon your situation and the time of year when you lose your job, you may be able to change to F-1 status to pursue another or a higher degree.
B-2 Tourist Visa
Many people ask about filing an application to change from H-1B status to B-2 tourist status to remain in the U.S. to search for a new job. This can be done, although 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.
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.
by: Kyle Knapp