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.
