Guidance for H-1B Workers Facing Termination of Employment

December 1, 2022

Recent massive layoffs and hiring freezes announced by major technology companies, coupled with fears of an imminent recession in the U.S. have significantly impacted workers and raised concerns among many currently employed nonimmigrant workers about maintaining their lawful nonimmigrant status in the U.S. Over the years, the tech industry has relied heavily on the H-1B visa program to hire foreign workers; in 2022, over 40,000 tech workers lost their jobs.

There are many pressing questions facing nonimmigrant workers who have been terminated from their employment or facing the prospect thereof. Below is an overview and guidance for these main concerns.  

Do Terminated Nonimmigrant Workers Have a Grace Period to Seek Employment or Depart the U.S.?
Under 8 CFR §214.1(l)(2), workers holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN visas have 60 days to either seek new employment, explore other visa options, or depart the U.S. Before January 17, 2017, nonimmigrant workers lacked a grace period and fell out of status upon cessation of employment. Previously, these workers had to rely on USCIS’ discretion based on extraordinary circumstances when filing for an extension or change of status.

What if the H-1B Worker Receives a Severance Agreement and Continues to be Paid His/Her Full Salary Without Working?
An employer may decide to continue to pay the foreign worker’s full salary for several months without requiring any productive work, pursuant to a severance or other employment agreement. USCIS has taken the position that the worker has been terminated as of the date he is placed in non-productive status, because the foreign worker is no longer employed in the capacity specified in the petition. Further, any material change in the terms and conditions of employment requires the filing of a new visa petition in order to continue to maintain the foreign workers’ lawful immigration status.

What if the Employer Fails to Notify USCIS of a Material Change of Terms and Conditions of Employment?
If the U.S. petitioner does not notify USCIS of a material change of employment through the filing of a new H-1B visa petition, USCIS may revoke the petition approval, deny the foreign worker’s change of status or extension of stay application, or take any other detrimental action after finding that the foreign worker has failed to maintain lawful immigration status. 

What if the H-1B Worker is Placed on Leave Due to Reasons Protected by Law (i.e. disability)?
USCIS recognizes that foreign workers in H-1B and other work visa status do not violate their immigration status if they are placed in non-productive status during a period that is not subject to payment under the employer’s plan or laws, such as the Family and Medical Leave Act or the Americans with Disabilities Act.  

What if the H-1B Worker is Terminated after Green Card Employment Sponsorship has Started?
A foreign worker may retain the priority date of an I-140 petition (immigrant petition) filed by his previous employer, if his new employer files a new labor certification and (upon approval thereof) files a new I-140 petition. The retention of a priority date in and of itself does not allow the foreign worker to remain in the United States, however. 

I am an Employer who has Terminated a Foreign Worker in H-1B, What Should I Do?
  • Employers must notify USCIS that there has been a material change to the terms and conditions of an already approved H-1B petition and withdraw the petition; 
  • Employers should withdraw the certified labor condition application (LCA) that was the basis of the approved H-1B visa petition; and 
  • Employers of H-1B workers must provide reasonable costs of transportation to the terminated employee’s foreign country. This obligation does not extend to the family members of the H-1B principal employee.
I am a Foreign Worker in H-1B Status who has been Terminated, What Should I Do?
  • First, the foreign worker should make an appointment with a licensed immigration attorney to understand his or her options.
  • Second, terminated H-1B workers should remember that they have a 60-day grace period to seek a new employer, apply for change of nonimmigrant status, or depart the U.S.
  • Third, the H-1B worker should consider their particular options:
    • If their spouse is in H-1B visa status, they may apply for a change of status to H-4 dependent visa holder. Employment is generally not permitted in H-4 visa status.
    • Another option is to enroll in a graduate or other educational program and seek F-1 visa status.
    • If the foreign worker has to depart the U.S. by the end of the 60-day grace period and later obtains employment with a company with operations in the U.S. and other countries, the foreign worker may be eligible for L visa status after working abroad for that employer for at least one (1) year in a managerial or specialized knowledge position. Additionally, if the foreign worker held H-1B status previously, they would be permitted to "recapture" the remaining period allowed that might have been unused in H-1B status previously.  
If you are a foreign worker who is facing termination of employment or if you are an employer seeking to terminate foreign workers, please contact our Immigration Team for case-specific guidance. 
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Hernández García, Edwin M. Associate Associate 212.574.0320 VCard
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