Are you a foreign national worker whose employment with a U.S company was recently terminated? Learn about the impact to your employment visa as well as options you may have to remain in the U.S.
USCIS has provided information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. Based on existing U.S. immigration rules and regulations, you may have several options to remain in the U.S.
How soon after employment termination does a foreign national need to leave the U.S.?
If you are in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN visa status, you and your dependents are permitted to stay in the U.S. for a 60-day discretionary grace period or until the expiration of your current I-94 record, whichever comes first. This time can be used to seek employment with a new company, file a change of status petition, or prepare to depart the U.S.
Are there options to remain in the U.S. past the 60-day grace period?
You may be able to remain in the U.S. past this grace period, if one of the following occurs:
- A new employer sponsors you for employment in your current visa status
Visa status could be maintained if a new employer timely files a change of employer petition on your behalf, requesting an extension of your current status. The petition must be filed before the end of the 60-day grace period or before the expiration of your current I-94 record, whichever date comes first. As portability rules permit current H-1B holders to begin working for a new employer upon USCIS receipt of a petition, you may also be able work while waiting for adjudication of the application. - A new employer sponsors you for employment in a new visa status
A new employer may be able sponsor you for employment in a different visa status. For example, if currently in L-1 status, you may be eligible for new employment under the TN, E-3, or H-1B1 classifications. However, while you are permitted to remain in the U.S. while the application is pending, you will not have authorization to work until the application is approved. - You file a petition with USCIS to change your visa status
You may apply to change your visa status to one of the following:- Dependent visa status (E-2, F-2, H-4, L2) Some individuals in a dependent visa status may be eligible for employment authorization. For more information, see the USCIS website: https://www.uscis.gov/
- Student visa status (F-1) Certain F-1 students may engage inlimited employment. For more information, see the USCIS website: https://www.uscis.gov/
- Visitor visa status (B-1, B-2) By statute, nonimmigrant visitors are specifically precluded from “performing skilled or unskilled labor” in the U.S.
Important Note: The timely filing of a “non-frivolous” application will stop the accrual of unlawful presence in the U.S. until the application is adjudicated. Meaning, if an application to change employer or status is (1) filed on your behalf during the 60-day grace period or before the expiration of your current I-94 record (whichever timeframe is shorter); and (2) ultimately approved, then you are considered to have authorized presence in the U.S. for the time in which the application was pending. However, if the application is denied, you must leave the U.S. immediately as the accrual of unlawful presence begins the day after the denial decision.
- You have an approved I-140 petition with a pending Adjustment of Status (AOS)
If you have (1) an approved I-140 petition; and (2) filed AOS (I-485) that has been pending for at least 180 days, you may be able to begin employment with a new employer (commonly referred to as “porting”). Your position with the new employer must be same or similar to the position in which your I-140 was approved and you must have a valid employment authorization document (EAD card), issued in connection with your AOS application.
What happens if the foreign national chooses to depart the U.S.?
You may simply choose to leave the U.S. at the termination of your employment. If you are in H-1B or O-1 status, reasonable costs of transportation to your last place of foreign residence must be provided by your former employer. Once abroad, you may continue to seek employment in the U.S. If you are in H-1B status and hired by a U.S. company, you may qualify to apply for readmission to the U.S. for the remaining period of your current H-1B status.
FAQs
- Considering the circumstances of my situation, will USCIS expediate my change of employer or change of status application?
Some circumstances may warrant expedited adjudication of a new application. However, keep in mind that the decision to expedite is at USCIS discretion and such requests are often rejected. Workers with an approved I-140 petition may be eligible for a compelling circumstances EAD for up to one year if they: (1) do not have an immigrant visa available to them in the Department of State’s Visa Bulletin allowing adjudication of an Adjustment of Status; and (2) face compelling circumstances. Information on how to make an expeditated request can be found at: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request - What happens to my previously approved I-140 petition?
Although there is no requirement for an employer to withdraw an approved I-140 after a foreign national worker’s employment has been terminated, your previous employer may still choose to do so and the timing of that request impacts your ability to use the approved I-140 in the future:- Requests made less than 180 days after I-140 approval
- I-140 is automatically revoked
- I-140 CANNOT be used to qualify for H-1B extensions beyond the standard six-year limit
- Priority date can be retained for future I-140 petitions
- Requests made after 180 days after I-140 approval
- I-140 is not automatically revoked
- I-140 CAN be used to qualify for H-1B extensions beyond the standard six-year limit
- Priority date can be retained for future I-140 petitions
- Requests made less than 180 days after I-140 approval
- Is applying for a green card an option?
You may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Workers with a pending adjustment of status application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD). For more information, see the USCIS website: https://www.uscis.gov/ - Can the attorney who filed my previous applications assist with my questions?
Possibly but keep in mind there is a dual representation situation in immigration cases filed with USCIS where a firm represents both the petitioner (employer) and beneficiary (employee). When this occurs, the attorney is required by law to keep each party (petitioner and beneficiary) adequately informed of any information related to the filed petition. It’s not guaranteed that information you share with the attorney regarding your terminated employment can be kept confidential from your prior employer.
If you have any questions, please feel free to reach out to a ZP attorney.