Losing Your Job on H1B: Your Guide to Keeping Your Visa Status After Unemployment

Losing your job on H1B has significant effects on your lawful status in the United States. Losing your H-1B job happens during a layoff, resignation, termination, or change of employer. You don’t automatically lose your status with H1B Unemployment since you are given a 60-day grace period from the day you cease working for your sponsoring employer. Within the H-1B grace period, you need to find a new employer, change your visa status, or adjust your status if you wish to remain in the USA. Should you fail to succeed with these options, you will have to depart the U.S. once the H1B 60 day grace period ends to prevent incurring days of unlawful presence.

Our guide includes complete details for the common situations that lead to H-1B Unemployment as well as information on your options to maintain your visa status even after losing your H1B job. Your options include both nonimmigrant temporary visas and permanent immigrant visas for keeping your lawful work status in the USA. We specialize in investment immigration which lets you obtain a US Green Card even without employer sponsorship. We have been helping foreign workers like you secure U.S. permanent residency through investment since 2014. Go through our guide to learn more about navigating job loss on H 1B and retaining a valid visa status in the USA. 

What Happens When You Lose Your Job While on H1B Visa Status?

Losing your job while on H1B Visa Status in the US directly affects your ability to stay in the country and continue your legal employment. Losing your job on an H1B Visa can lead to the loss of your lawful nonimmigrant status in the USA if you fail to secure employment or another valid U.S. Visa. One of the conditions of the H-1B Visa is for you to maintain your employment and keep being paid by your sponsoring employer to be in lawful status. 

Let’s look at the common scenarios where H1B Unemployment happens.

What are the Reasons for Losing Your Job on H1B?

There are different causes for unemployment on H-1B Visa which can jeopardize your lawful status in the US. 

Experiencing H1B Layoff

Many H1B workers, especially in the tech industry, have been laid off because of the COVID-19 pandemic. The U.S. Department of Labor (DOL) reported that 20.5 million workers have lost jobs, double what the U.S. experienced during the 2007-2009 financial crisis, due to the pandemic. Since the USA categorizes H 1B workers to be “at will”, your employer can lay you off at any time under lawful reasons. You’re still able to access benefits such as a severance package as a laid-off H-1B Visa holder.

Resigning while on H1B

Should you quit your job on H-1B, you forego certain benefits available to those who experienced H1B layoffs such as having your transportation back home paid by your sponsoring employer. Your sponsored H 1B status will cease the moment you leave your job, and you will start racking up days of unlawful presence, especially if the U.S. Citizenship and Immigration Services (USCIS) denies you the 60-day grace period. We advise you to speak with your H1B Attorney before resigning from your US job since there are significant immigration repercussions to leaving your work while on H-1B. 

Getting Fired on H1B

You will continue to be granted the same privileges as an ordinary American worker depending on the circumstances surrounding your termination on H-1B Visa. You are still eligible for applicable severance benefits and return transportation even if you are fired due to subpar work performance or other unfavorable circumstances. However, a lot of the rules governing the grace period are subject to your employer’s and the immigration officer managing your case’s discretion. Your H-1B status can be negatively impacted if you are fired for poor performance rather than being laid off for practical reasons.

Changing Employers on H1B

You are entitled to a grace period before you start incurring unlawful presence if you are switching jobs or your employer is submitting an extension of your U.S. work authorization. You should be able to prove that you are actively looking for a new job to be eligible for the maximum H1B 60 day grace period. The expiration date on your Form I-94 (Arrival/Departure Record) is also used to determine the time limit on your H-1B grace period. Even if you are still within the confines of the H1B grace period, the I-94 expiry date will be used to indicate the last day that you are allowed to lawfully stay in the USA. 

Do You Lose Your Visa Status with an H1B Unemployment?

You don’t automatically lose your H-1B Visa Status after becoming unemployed. Generally, as in the case of an H1B layoff, you are given a maximum period of 60 days before you start to accrue days of unlawful presence after an H-1B Unemployment. You lose your H1B Visa Status if you’re unable to secure a US job or change to another nonimmigrant visa within the grace period. Legally, your U.S. employer is required to notify the U.S. Citizenship and Immigration Services (USCIS) of the termination of your H 1B employment, regardless of the reason, which revokes your original H1B petition and classifies you as out of status.  

How Long Can You Stay in the US After an H1B Unemployment?

You don’t have to leave the USA right away after losing your job on H-1B due to the 60-day grace period. The H1B 60 day grace period is generally meant for you to find new employment to maintain your visa status and keep working in the US. USCIS regulations state that the 60-day grace period is normally calculated starting from the day on which you last did actual work rather than the day on which you last received your wages. The majority of foreign workers who lose their jobs decide to stay in the USA for the full 60 days, or until their I-94 expiration date, whichever comes first, in order to look for new employment.

A petition has been submitted to the White House to extend the H1B grace period to 180 days, however, the petition has not been approved as of writing. Extending the H-1B grace period to 180 days is meant to accommodate other concerns that H1B workers and their families will have to navigate after a layoff such as visa processing, finding new employment, schooling, and traveling. 

Can the H1B Grace Period be Shorter Than 60 Days?

Yes, USCIS can deny you the full H1B 60 day grace period if you were suspected to be working without authorization or if you are involved in fraudulent activities. Your H-1B grace period can also be shortened if you were found to not be actively seeking employment or a new US Visa status to maintain a lawful stay in the USA. 

The USCIS also considers your Form I-94 expiration date in addition to the H-1B 60-day grace period when deciding the remaining duration of your lawful stay in the US. You leave the USA earlier if your I-94 expires before the conclusion of the H-1B grace period.

What are the Rules on H1B Employment Termination?

As an H-1B Visa holder, you should know the rules that apply to U.S. companies when it comes to H1B Employment Termination. The rules on H1B Employment Termination related to specialty foreign workers are enforced by USCIS and the Department of Labor (DOL). USCIS requires employers to give you a notice to terminate if you are an H-1B worker subject to a layoff in addition to notifying the agency itself of the H1B Employment Termination. The Department of Labor also requires these notices, preferably in writing, to classify the H1B Employment Termination as bona fide. Your employer must have also offered to shoulder the costs of transporting you back to your last country of residence for a bona fide termination to occur.

What are Your Options to Prevent Losing Your Visa Status After H1B Unemployment?

We have already mentioned that you can apply for new employment if you lost your job while on H 1B to maintain your visa status in the USA. However, if you have been laid off as a tech industry worker, for example, we know it’s not easy to gain employment in the same industry. In this section, we discuss other viable options for you to keep your lawful status in the USA even after losing your H-1B job. 

Porting Your Job to A New Employer

You have maintained your visa status if you have secured a new employer who has filed a new H-1B Visa petition (Form I-129, Petition for Nonimmigrant Worker), labor certification, and an extension of stay request within your 60-day grace period. The H-1B portability rules allow foreign employees to start working for a new employer as soon as the new H 1B petition is correctly filed with USCIS, without having to wait for the petition to be approved. Once a decision has been made on your petition and you receive a denial, your authorization to work based on portability will end. 

It’s important to keep in mind that your new employer’s H1B petition will be subject to the annual numerical limits on H-1B petitions if you switch from cap-exempt to cap-subject employment. The H1B cap is the annual limit of 85,000 H-1B Visas available each year. Your new employer must first file an electronic registration if they are subject to the annual H-1B cap. Registrations are normally chosen by lottery in early March. However, if your initial H 1B petition has already counted in the annual cap, you can port to your new employer at any moment, not just on April 1st.

Porting also applies to foreign workers with an adjustment of status application (Form I-485, Application to Register Permanent Residence or Adjust Status) that has been pending for 180 days or more and an underlying immigrant petition (Form I-140, Petition for Immigrant Worker). The underlying I-140 petition is transferable to the new job offer in the same occupational category with the same or new employer in this case. 

Changing Your Status to H1B Alternatives

You also have the option of changing your visa status from H-1B to alternative visas within your 60-day grace period. Your H1B Alternatives include a temporary work visa, student visa, exchange visitor visa, dependent visa, or visitor visa.

Temporary Work Visas

• O-1 for persons with extraordinary ability. You must have a sponsoring employer and internationally or nationally recognized awards and achievements. 
• E-1 for treaty traders. You must be engaged in substantial and principal trade with the US and be a citizen of a treaty country. Treaty countries such as Singapore, Chile, and the United Kingdom maintain a treaty of commerce and navigation with the USA.
• E-2 for treaty investors. You must establish a business in the United States by investing substantial capital and be a treaty country national.
• TN for Mexican and Canadian citizens. Your occupation must be on the North American Free Trade Agreement (NAFTA) list of professions.

These visas are also nonimmigrant, the same as the H-1B Visa, which only allows for a definite period of stay in the United States. You will eventually need to apply for an immigrant visa if you want to work and live permanently in the United States. 

Student Visas

• F-1 for international academic students. You must be studying at an approved institution such as a university, seminary, college, or conservatory. You can work on and off campus for a maximum of 20 hours per week if school is in session as an F1 student. You will also need to obtain work authorization before you can work off campus as an F-1 Visa student.
• M-1 for vocational students. You must be studying non-academic, vocational, or technical courses in the USA. You will also need work authorization before working as an M1 student and you can only work for 1 month for every 4 months of study at a job that is related to your studies.

Working freedom is restricted for foreign students in the USA since the main purpose of the student visa is to allow you to engage in your studies. You will need to apply for a work visa or an immigrant visa if you want to gain broader working rights in the USA. 

Exchange Visitor Visa

The J-1 Visa is for exchange visitors and students participating in programs sponsored by educational or nonprofit organizations that have been authorized by the U.S. Department of State (DOS). The principal restriction of the J 1 Visa is that absent a waiver, you must leave the United States and stay in your home country for at least 2 years after finishing your J program before you can reapply for a US Visa. 

Dependent Visa

You can change status as a dependent if your spouse holds an H-1B Visa or L-1 Visa for intracompany transferees. H-4 and L-2 dependents are able to work in the USA without restrictions as long as work authorization is obtained. However, should your spouse lose their visa status, you will also lose your US work authorization. 

Visitor Visa

The B1/B2 Visa are for business visitors and tourists which allows for a maximum stay of 6 months in the United States. Some foreign workers opt to extend their stay in the US after H-1B Unemployment to wrap up their affairs or continue searching for jobs. Interviewing for new positions and looking for work are both permitted activities under the B-1/B-2 Visa, according to USCIS. However, you cannot work in the U.S. while you hold a Visitor Visa status.

The accrual of unlawful presence shall be tolled or stopped until a non-frivolous application to change status to any of these visas is timely filed. You will not accrue unlawful presence while the application is ongoing even after the 60-day grace period has passed if you file a non-frivolous application to change status before the end of your H 1B grace period. Once your application is approved, your status will be changed and the entire time your was pending, you are assumed to have been in a period of authorized presence. The day following the decision to deny the application, you begin to accrue unlawful presence in the US. 

Adjusting Your Status

Adjusting your status with an I-485 petition enables you to obtain permanent residence in the United States which is more advantageous than nonimmigrant visas if you want to work indefinitely in the United States. You can adjust status in the USA through family-based sponsorship or investment immigration to maintain lawful status in the US after H-1B Unemployment. Getting a Green Card for permanent residence enables you to work for any employer and remain in the USA regardless of your employment status.

Family-based Green Card

Family-sponsored Immigrant Visas are divided into different categories depending on your relationship with the sponsoring family member who is either a Lawful Permanent Resident (LPR) or a U.S. citizen. There must be a readily available immigrant visa for you so you can file your I-485 petition. Immediate family members of US citizens, such as spouses, children, and parents, always have immigrant visas available to them and are able to adjust status at any time.

Investment Green Card

The EB-5 Visa is an employment-based Green Card that does not rely on sponsorship for eligibility. The main requirement for an EB5 Visa is a minimum investment in a U.S. enterprise that leads to at least 10 full-time jobs for American citizens. You, your spouse, and unmarried children under 21 are granted an initial 2-year Conditional Green Card with an approved US EB 5 Visa. After you have satisfied the investment and job creation requirements of the EB-5 Program, you and your family then gain Lawful Permanent Resident (LPR) status so you can live, work, and study permanently in the USA. We have assisted numerous foreign investors in getting a US Green Card faster with an EB5 Investor Visa. 

While waiting for your adjustment of status approval for a family-based Green Card or an EB 5 Green Card, you can apply for an Employment Authorization Document (EAD) to continue working in the USA, as well as a Travel Permit so you can reenter the USA while your petition is pending. 

Applying for Employment Authorization Under Compelling Circumstances

Beneficiaries of Form I-140 are eligible for a compelling circumstances Employment Authorization Document (EAD). A compelling circumstances EAD is a discretionary interim measure designed to aid some people in obtaining LPR status by avoiding the need for them to depart the US suddenly. You will no longer be preserving your H-1B Visa status but working under compelling circumstances EAD will normally put you in a period of authorized stay. You will not accrue unlawful presence in the United States while your EAD is in effect.  

You are eligible for a compelling circumstances EAD for up to 1 year if you meet the following.

• Are under compelling circumstances.
• Do not have a readily available immigrant visa based on the Department of State (DOS) Visa Bulletin.

What Happens if I Fail to Find a Job Within the H1B Grace Period?

In case you are unable to secure a job, change your visa status, or adjust your status within the H-1B 60-day grace period, you have the option to return to your home country. Should you choose to leave the United States after losing your job on H1B, your sponsoring employer is obligated to shoulder the reasonable cost of your transportation back home per 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16). Transportation costs to your home country for your H4 dependents, however, are not covered by your US employer. 

Once you are back in your home country, you can apply for jobs in the US and be readmitted for the remaining validity of your H 1B Visa. You can also finish the application or petition process for another U.S. Visa classification for which you might be qualified in your home country.

The important thing is that you don’t accrue days of unlawful presence in the USA, so if you have exhausted all your options for remaining in the United States, you need to depart by the end of your H-1B grace period. Incurring unlawful presence in the U.S. for more than 180 days bars you from reentering the country for 3 years while unlawful presence for 1 year or more bars you from reentering the US for 10 years.

When Can You Start Working for Your New Employer After H1B Unemployment?

You can start your job with your new employer once your H1B petition has been filed with USCIS. You don’t need to wait for the petition to be approved before you start working but it’s best to have your Form I-797 (Notice of Receipt) first to prove that you have a pending petition before commencing work. Remember that a denial of your H-1B Visa petition means that you need to end your employment and cause you to start incurring days of unlawful presence.

Is There Expedite Processing for Maintaining My Visa Status After H1B Unemployment?

Yes, certain circumstances, such as requests to change status to a dependent status that includes eligibility for employment authorization, qualify you for expedited processing. For instance, in order to avoid significant financial loss, a change of status application from H-1B to L-2 allows you to request expedite processing. You will need to file the request with USCIS in a  timely manner and with the appropriate supporting documentation. USCIS has the sole discretion to adjudicate expedited processing requests depending on your case.

Can You Still Apply for a Green Card After Losing Your Job on H1B?

Yes, if you have an adjustment of status application that has been pending for 180 days or more, and a valid underlying immigrant petition, you remain eligible for a USA Green Card even after losing your job on H-1B Visa. Even without a pending I-485, you can still change from H1B to Green Card through the EB 5 Immigrant Investor Visa Program. Many of the clients we have helped found the EB-5 Visa USA to be more advantageous since the program allows for self-petitioning and concurrent filing. Once the EB5 petition and adjustment of status application are submitted, you can also obtain an EAD and Travel Document to continue working in the USA and reenter the country after traveling overseas.  

Can an H1B Attorney Help Me Keep My Visa Status in the US After Unemployment?

Yes, working with an H-1B Visa Attorney is definitely beneficial in helping you navigate the best strategy to maintain lawful status in the USA after an H1B layoff. An H1B Visa Attorney is an immigration lawyer who specializes in all aspects of the H-1B Work Visa. Hiring an experienced H 1B Lawyer ensures that you get the appropriate advice on U.S. immigration and obtain the needed assistance in organizing your paperwork to keep your lawful visa status in the USA. 

Can I Use the H1B Grace Period if I Resigned from my Job?

As USCIS does not clearly distinguish between job loss, layoff, resignation, or termination, you can use the H1B 60 day grace period if you quit your current position. Remember, though, that the grace period is there to assist nonimmigrant workers who find themselves in difficult circumstances. As a result, there is a possibility that USCIS will refuse to grant you the grace period if your case is not strong enough. Therefore, it is not a good idea to simply quit your job if there are no reasons to do so. We advise you to discuss matters such as this with your H-1B Lawyer.

Can I Use the H1B Grace Period More Than Once?

You can use the 60-day grace period only once for one employer. Let’s give an illustration to help you understand better. You have a 60-day grace period as an H-1B worker for Employer A. Now, if you quit your job or are laid off but later decide to return to Company A on the same H1B petition after 30 days, you are not eligible for another 60-day grace period. On the other hand, if you switch to Employer B, you will have a fresh H1B petition and validity term, giving you access to an additional 60 days of grace period.

Can My H4 Spouse Work During the H1B Grace Period?

Yes, your spouse on H-4 status and with a valid EAD can continue to work despite your H-1B loss of employment. However, remember that your spouse’s H4 status is dependent on your H1B status which would cease to be valid once you lose your status. Since you have a grace period wherein you can temporarily retain legal status, your H4 spouse can continue working legally within this period. Should you fail to obtain new employment, change status, or adjust your status, any job carried out past the grace period will be regarded as unauthorized employment. 

Can I Travel Outside the US During My H1B Grace Period?

Yes, you can travel outside the USA during your H1B grace period, however, if you are unable to secure new employment, change status, or adjust status, you will have difficulty reentering the United States. Staying in the US during your 60 day grace period is recommended especially if you want to continue working and living in the United States. Losing your H1B status overseas will require you to go through consular processing to apply for a new US Visa if you want to reenter the country.

FAQs about Losing Your Job on H1B Visa