RECENTLY LAID OFF

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

Do ìrecently laid offî workers have a ìgrace periodî for their immigration status?

The INS has traditionally taken the position that a personís 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, INS regulations do not provide a grace period for recently laid off workers. 

There are significant consequences for failing to maintain oneís 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 INS can forgive oneís failure to maintain his or her status. Specifically, the INS 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 INS 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.