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  • Article: Termination of H-1B Employment: End of the Road? by David E. Gluckman and Jonathan L. Moore

    Termination of H-1B Employment: End of the Road?

    by David E. Gluckman and Jonathan L. Moore

    Termination: the somber word no employee ever wants to hear-especially the H-1B employee who has to worry about immigration status in addition to job loss. The unpredictability of today's global economy has forced many H-1B employees to face this difficult and sudden situation armed with little information, or even misinformation.

    This article provides a "question and answer" overview of issues to consider when an H-1B employee is terminated, to better prepare employees for this potential day of reckoning. This article provides only an introduction to potential considerations based on the guidance currently available from U.S. Citizenship and Immigration Services ("USCIS"). This article does not constitute legal advice. Each employee's situation is different, and terminated employees should always consult with a qualified immigration attorney to discuss their specific situation.

    1. What happens to my immigration status if my employment is terminated?

    An H-1B employee's legal status in the U.S. is contingent on working for his or her H-1B employer[1]. As soon as that employment relationship terminates and you stop working for your H-1B employer, you are no longer in lawful immigration status[2]. There is no "grace period.[3]" This means that, as of the day after you are terminated, you are potentially removable from the United States[4]. Quick planning and action is required to avoid adverse immigration consequences.

    Fortunately, despite the termination of your employment, you will not accrue "unlawful presence."[5] There is an important distinction between being "out of status" and being "unlawfully present." You are "unlawfully present" if you have stayed in the U.S. beyond the expiration date of your immigration status, as shown on your I-94 card or I-797 approval notice.[6] As long as the original H-1B period for which you were approved has not yet expired, you may be out of status, but you will not be unlawfully present. This provides you with significantly more flexibility in the event you find another job opportunity, as explained below, even if you need to depart the U.S. to "cure" the situation.

    2. What are my general options when my employment is terminated?

    As always, before proceeding, you should immediately contact a qualified immigration attorney to discuss your specific circumstances and options. As a general matter, one obvious option is to leave the U.S. If you would like to remain in the U.S., the key is to make a filing with USCIS before your termination becomes effective.

    Ideally, if you can find a new employer willing to sponsor you for H-1B status, that new employer may be able to file an H-1B petition on your behalf before your termination becomes effective. If that option is not available because the termination was sudden or you are unable to find a new employer, another option is to file an application to change to another status, such as a B-2 visitor, before your termination is effective.

    If you are able to find a new H-1B employer, but only after your termination becomes effective, USCIS has the discretion to excuse your new employer's untimely filing if the agency determines that "extraordinary circumstances" beyond your control (such as a termination without warning) prevented you from filing earlier. [7] A qualified immigration attorney can assist you with including a thorough explanation and appropriate supporting documentation to maximize the likelihood that USCIS will favorably exercise its discretion.

    3. Can I just start working part-time instead of being terminated if my employer is willing?

    If you see termination coming because of a lack of work or a business downturn, it may be a good idea to approach your employer to see if the company would be willing to switch you to part-time. You can certainly maintain H-1B status by working part-time, as there is no set minimum number of hours you must work[8], as long as your earnings will be enough to support you financially.[9]

    However, there may be practical barriers to this option. Your employer would need to file and pay the fees associated with an amended H-1B petition to inform USCIS of the change in the terms of employment.[10] Also, the amended petition would have to be filed sufficiently in advance-your employer will still be required to pay you full-time wages until the amended petition is approved by USCIS.[11]

    4. Does my employer have to provide me the costs of return transportation to my home country if my employment is terminated?

    If you are terminated before your H-1B period expires, your employer is responsible for the "reasonable costs of return transportation" to your "last place of foreign residence."[12] For example, if you are an Indian national living in Canada at the time you were approved for H-1B and you are terminated before your approved H-1B period expires, your employer will need to offer you return transportation to Canada-not India. If you quit instead of being terminated, or if your employment is terminated at the expiration of your H-1B approval, you will not qualify for mandatory return-transportation costs.[13]

    5. If I find a job with another employer a month after I am terminated, can I start work as soon as my new employer files an H-1B petition?[14]

    Under a statutory provision known as "porting," if certain requirements are met, an H-1B beneficiary is permitted to begin working for a new employer as soon as the new employer files an H-1B petition on that employee's behalf. [15] Once the new employer files the H-1B petition, the employee is authorized to work for the new employer until USCIS adjudicates the new petition. [16] If the new petition is denied, the employment authorization ceases.[17] Porting does not provide H-1B status-it merely provides work authorization.[18]

    In order to take advantage of "porting," you must satisfy four requirements. First, you must have been lawfully admitted to the U.S.[19] Second, your new employer's H-1B petition must be "nonfrivolous."[20] Third, the new H-1B petition must have been filed "before the date of expiration of the period of stay authorized by the Attorney General"-in most cases, the expiration date of the prior H-1B petition.[21] Finally, you cannot have engaged in unauthorized employment before the new H-1B petition was filed.[22] USCIS has provided little official guidance on how it applies these requirements.

    Of these four requirements, the most difficult to understand is the concept of being in a "period of stay authorized by the Attorney General." This is different from being "out of status." [23] When you are the beneficiary of an H-1B petition, you are generally in a "period of stay authorized by the Attorney General" until the H-1B period expires or you are explicitly found by USCIS or an Immigration Judge to have violated your status.[24] Simply being out of status (by virtue of the termination) is not enough to place you outside a "period of stay authorized by the Attorney General."[25] Therefore, if you were terminated a month ago but there is still time left before your H-1B petition expires, you have been out of status but are still in a "period of stay authorized by the Attorney General." That means you should be eligible to port.[26]

    Although you will be lawfully working as soon as the petition is filed, USCIS may ultimately approve your new H-1B petition, but deny your request for an extension of stay.[27] This means that you would need to travel outside the U.S. once the new H-1B petition is approved to "cure" the period when you were out of status and "activate" the approval upon reentry to the U.S. That is because, in any petition to extend your status, you must demonstrate that you have maintained your status up to the time of filing. [28] In other words, being in a "period of stay authorized by the Attorney General" may be enough to give you temporary employment authorization while the new H-1B petition is pending, but it may not be enough to fully resolve your immigration status once the new petition is approved. To avoid this situation (to the extent possible), you will need to ask USCIS to exercise its discretion to approve the petition as an extension of stay based on the "extraordinary circumstances" exception discussed in Question 2 above.

    6. I filed to change to another status, such as B-2. I have now found a new employer willing to sponsor me for H-1B status. What impact will my prior filing have on my ability to work for my new employer in H-1B status?

    USCIS has stated that "porting" is only available to individuals currently in H-1B status. [29] For example, USCIS stated that individuals who changed from H-1B to F-1 or H-4 status, and for whom an employer subsequently filed a new H-1B petition, were not eligible to begin working pursuant to portability. [30]

    The effect of an intervening filing, such as a request to change to B-2 status, will depend on whether the filing has been approved or remains pending. If you have been approved for a change of status (e.g., to B-2 status), you are not "currently in H-1B status." [31] Therefore, according to USCIS, you will not be able to work for your new employer until that employer's H-1B petition is approved. On the bright side, you will not need to leave the U.S. to "activate" the H-1B status-or ask USCIS to exercise its discretion to overlook any gaps in your status-because the B-2 status will fill the gap between the H-1B with your old employer and the H-1B filed by your new employer.

    If you have a change of status application pending with USCIS following your termination, you are neither "currently in H-1B status" nor in "a period of authorized stay as a result of a pending H-1B extension petition."[32] As a result, you cannot begin working until USCIS approves your new employer's H-1B petition. In this scenario, there is one additional concern-if the change of status application is approved after your new employer's H-1B petition, the change of status application will supersede the H-1B approval. That means you would likely be in a non-work-authorized status and would need to leave the U.S. and reenter on an H-1B visa to activate your H-1B status. You should consult with a qualified immigration attorney to discuss potential ways to avoid this issue.

    7. USCIS approved the H-1B petition filed by my new employer. What if my old job opens up with my previous employer while I am working for my new employer? Can I go back to my old job?

    According to unofficial guidance from USCIS, "[a]pproved H-1B petitions remain valid until they either expire or are revoked."[33] As a result, unless the H-1B petition from your prior employer has expired, or unless your prior employer withdrew it after terminating you, you can go back to your old job. [34] However, as discussed in the answer to Question 5, even if the prior petition expired or was revoked, you could potentially begin working for your old employer pursuant to "porting" as soon as your old employer files a new H-1B petition on your behalf.[35]

    Conclusion

    Any termination scenario is stressful. For H-1B employees, however, termination of their employment also means termination of the ability to maintain status in the U.S., and raises a host of immigration-related issues. This article provides only an overview of some of these issues. In light of the potential consequences, terminated H-1B employees should seek swift guidance from a qualified immigration attorney to assist with navigating the road ahead.


    1 See INA § 101(a)(15)(H)(i)(b); see also Letter from Efren Hernandez III, Dir., Bus. & Trade Servs., INS, to Wendi S. Lazar 1-2 (Mar. 27, 2001) [hereinafter "Hernandez-Lazar Letter"], available at AILA InfoNet Doc. No. 01032790 ("[An] [H-1B] nonimmigrant is admitted to the United States to perform specific services for a specific employer . . . . Once this purpose is no longer being served, then the alien is no longer maintaining status . . . .").

    2See, e.g., Letter from Efren Hernandez III, Dir., Bus. & Trade Servs., INS, to Sheela Murthy 1 (Apr. 24, 2002) [hereinafter "Hernandez-Murthy Letter"], available at AILA InfoNet Doc. No. 02051432 ("An alien is not considered to be maintaining status if he or she is terminated from his or her H-1B employment regardless of the validity of the supporting petition."); Hernandez-Lazar Letter, supra note 1, at 1 ("When the employment relationship does not continue then the alien is no longer in H-1B status upon the moment of termination.").

    3See, e.g., Hernandez-Lazar Letter, supra note 1, at 2.

    4See INA § 237(a)(1)(C)(i).

    5 There are severe consequences to accruing long periods of "unlawful presence" (as opposed to simply being out of status) in the U.S. If you have been "unlawfully present" in the U.S. for more than 180 days and then depart the U.S., you will not be allowed to reenter the country (without a waiver) for a period of three years. INA § 212(a)(9)(B)(i)(I). If you have been unlawfully present for at least a year prior to departing, you will be barred from reentering the U.S. for a period of ten years. Id. § 212(a)(9)(B)(i)(II). You cannot obtain an employment-based green card through adjustment of status in the U.S. if you have been either out of status or unlawfully present for more than 180 days since your most recent admission. See id. § 245(c)(2) & (k).

    6 Memorandum from Donald Neufeld et al., Acting Assoc. Dir., U.S. Dep't of Homeland Sec., to Field Leadership 25 (May 6, 2009), available at AILA InfoNet Doc. No. 09051468. According to USCIS policy, if your approved H-1B period has not yet expired, you will only begin accruing unlawful presence if USCIS explicitly finds a status violation while adjudicating a request for an immigration benefit (e.g., a change-of-status application) or if an Immigration Judge holds that you have violated your status. Id. For additional discussion regarding the distinction between unlawful presence and being out of status, see infra notes 23-26 and accompanying text.

    78 C.F.R. § 248.1(b) (2012). You must also show that (1) you have otherwise maintained your prior status, (2) you have the intent and means to return to your residence abroad following your period of approved stay, and (3) you are not in removal proceedings. Id.

    8See, e.g., 20 C.F.R. § 655.730(c)(6) (2012) (acknowledging the propriety of part-time H-1B employment); see also Letter from John Brown, Acting Chief, Bus. & Trade Servs., INS, to Bennett R. Savitz 1 (July 18, 1997), reprinted in 74 Interpreter Releases 1219, 1232-33 (1997) ("There is no limit on the number of hours that an H-1B nonimmigrant may work . . . .").

    9See generally INA § 212(a)(4) (listing the public-charge grounds of inadmissibility); 8 C.F.R. § 214.1(a)(3)(i) (requiring nonimmigrants to show that they are admissible when filing to extend their stays in the U.S.).

    108 C.F.R. § 214.2(h)(11)(i)(A).

    11See Interim Final ACWIA Regulations, 65 Fed. Reg. 80,110, 80,172 (Dec. 20, 2000) ("The Department [of Labor] agrees . . . that an employer may secure approval of a new H-1B petition for part-time work, after which the employer is obliged to pay only for the part-time work." (emphasis added)). Generally, an H-1B employee cannot pay filing fees for H-1B petitions. However, in these circumstances, the employee could arguably pay the $1225 fee for premium processing because premium processing would be for the benefit of the employee (i.e., to continue working instead of being terminated). See 20 C.F.R. § 655.731(c)(9)(iii)(C) (permitting employees to pay for H-1B fees and costs which are not "required to be performed by the employer" (emphasis added)); accord Interim Final ACWIA Regulations, 65 Fed. Reg. at 80,199.

    128 C.F.R. § 214.2(h)(4)(iii)(E); see also INA § 214(c)(5)(A).

    138 C.F.R. § 214.2(h)(4)(iii)(E).

    14The answers to Questions 5 and 6 of this article presume that you have been counted against the H-1B cap. If you have not yet been counted against the cap because you have been working for a cap-exempt employer, you will not have this level of flexibility.

    15See INA § 214(n)(1). Generally, a petition is deemed "filed" when it is received by USCIS. See, e.g., 8 C.F.R. § 103.2(a)(7)(i); Memorandum from Donald Neufeld et al., supra note 6, at 35.

    16 INA § 214(n)(1).

    17Id.

    18See, e.g., Letter from Efren Hernandez III, Chief, Bus. & Trade Servs., U.S. Citizenship & Immigr. Servs., to Naomi Schorr 1 (May 23, 2007), available at AILA InfoNet Doc. No. 07052563 ("The portability provision of INA section 214(n) does not confer H-1B status on the beneficiary of the H-1B petition. Rather, section 214(n) provides the narrower benefit of continued employment authorization . . . .").

    19 INA § 214(n)(2)(A).

    20 INA § 214(n)(2)(B); see also Memorandum from Michael A. Pearson, Exec. Assoc. Comm'r, INS, to Reg'l Dirs. et al. 1 (Jan. 29, 2001), available at AILA InfoNet Doc. No. 01020802 (stating that a petition is "nonfrivolous" if it "is not without basis in law or fact").

    21INA § 214(n)(2)(B).

    22 INA § 214(n)(2)(C).

    23Notably, a nonimmigrant who is in a "period of stay authorized by the Attorney General" is not unlawfully present. See Memorandum from Donald Neufeld et al., supra note 6, at 9-10; see also supra notes 5-6.

    24See Memorandum from Donald Neufeld et al., supra note 6, at 25.

    25See id. Additionally, a revocation of the petition is likewise generally not enough to terminate the "period of stay authorized by the Attorney General" unless it includes an explicit out-of-status finding. Id. Most revocation notices do not contain such an explicit finding.

    26 Even if your original H-1B status expires while the second H-1B petition is pending, you will generally not accrue unlawful presence because you will be in an "authorized period of stay." See id. at 35.

    27See 8 C.F.R. § 214.2(h)(15)(i) ("Even though the requests to extend the [H-1B] petition and the alien's stay are combined on the petition, the director shall make a separate determination on each.").

    288 C.F.R. § 214.1(c)(4).

    29 See U.S. Citizenship & Immigr. Servs., Questions and Answers, USCIS American Immigration Lawyers Association (AILA) Meeting, Apr. 7, 2011, at 7-8 [hereinafter “USCIS Questions and Answers”], available at http://www.uscis.gov/USCIS/Outreach/...%20_040711.pdf. Notably, USCIS’ interpretation appears more restrictive than the language of the statute, which states that portability applies to an individual who was previously issued an H-1B visa or “otherwise provided” H-1B status. INA § 214(n)(1).

    30See USCIS Questions and Answers, supra note 29, at 7-8.

    31See id.

    32Id.

    33Hernandez-Murthy Letter, supra note 2, at 1.

    34Id.

    35See supra notes 15-22 and accompanying text; see also Hernandez-Murthy Letter, supra note 2, at 2 ("[E]ven if the petitions filed by the first employer . . . where [sic] deemed invalid, the alien could return to the initial employer upon the filing of an I-129 petition by that employer.").


    About The Author

    David Gluckman and Jonathan Moore are attorneys with McCandlish Holton, PC in Richmond, Virginia. Their practices focus on advising businesses and individuals on U.S. immigration options, the processing of temporary visa petitions, and permanent resident applications for family-based and employment-based applicants in all categories. Mr. Gluckman can be reached at dgluckman@lawmh.com . Mr. Moore can be reached at jmoore@lawmh.com.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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