RECENTLY LAID OFF

What happens to the immigration status of H-1B workers when they lose their job?

Do recently laid off workers have a "grace period" for their immigration status?

The USCIS has traditionally taken the position that a person's H-1B status automatically ends with the termination of his or her H-1B employment, whether the worker quits or is fired. A recent INS memorandum, however, has created a widespread rumor that "H-1B workers have some sort of grace period if they are terminated from their job."  Unfortunately, this rumor is incorrect.  Contrary to what some may believe, USCIS regulations do not provide a grace period for recently laid off workers.

There are significant consequences for failing to maintain one's status.  An H-1B worker who is out of status even by a day is technically ineligible for an extension of stay or change of status and is subject to removal proceedings. Under limited circumstances, however, the USCIS can forgive one's failure to maintain his or her status. Specifically, the Immigration has the discretion to approve an untimely-filed request for extension or change of status if the delay was due to "extraordinary circumstances," and the worker did not otherwise violate his or her nonimmigrant status, is not in removal proceedings, and remains a bona fide nonimmigrant. The USCIS has exercised this discretion favorably to grant an extension or change when approving a petition by a new employer. However, the law does not permit the individual to start the new job until the petition/extension is approved.

If you have questions about your status, contact BKR at immigration@bkrlaw.com and we can advise you of the best strategies for preserving your status.