Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter (See 8 CFR 214.1(l)(2)).

• Workers may be able to maintain status if an employer timely files an H-1B  petition on their behalf  
• Workers may be able to legally remain in the US in a period of authorized stay if they timely file a Change of Status application to a new nonimmigrant status  
• Workers who are unable to timely file a change of status application or find a new employer who timely files an H-1B petition may need to depart the US.

Portability to a New Employer

Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved.

A worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) can transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. This is commonly referred to as “porting.”  

 Change of Status

Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse. Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants. Some spouses of H-1B workers may be eligible for work employment authorization if certain requirements are met. Other possible nonimmigrant options include student status (F-1) or visitor status (B-1 or B-2).  

 Departure from the United States

Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States.

If an H-1B worker voluntarily terminates his or her employment, an employer is not liable for the cost of return transportation abroad [8 C.F.R. 214.2(h)(4)(iii)(E)]. The employee should depart the United States on the final day of employment with the sponsoring employer, unless he or she has secured H-1B sponsorship of another employer or otherwise changed immigration status. There is a discretionary 60 day grace period, but employee should be aware that this grace period is not automatic.

If the employer dismisses the H-1B worker prior to the end of the period of authorized employment, the employer must provide the reasonable cost of return transportation to the alien's last place of foreign residence (check or direct deposit). Dismissal for any reason, even for cause, triggers this provision. INA 214(c)(5)(A); 8 C.F.R. 214.2(h)(4)(iii)(E)

Procedure Department Must Follow if it will terminate an H-1B's employment prior to the end date listed on her/his H-1B Approval Notice:

• Department notifies ISSS that an individual’s employment has been terminated
• ISSS provides the Department with an average cost of return air fare to the employee's home country
• ISSS creates a Return Transportation Letter and emails a copy to the Department
• Department emails a copy of the signed Return Transportation Letter to [click-for-email]
• Department requests payment from Accounts Payable (either a check or Direct Deposit) using the Return Transportation Letter as documentation (the only signature required for the letter at this point is the signature of HR/ the Department Administrator)
• The Department emails the Return Transportation Letter with proof of return transportation payment to the employee, cc’ing Sharon Loughran
• ISSS withdraws the LCA after the final date of employment
• ISSS sends a withdrawal request to USCIS via UPS
• USCIS will send a Notice to ISSS approving our Withdrawal of the H-1B Petition Request
• Hopefully employee will email a signed Acknowledgement and Declaration to the Department and ISSS  

(E) Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission pursuant to section 214(c)(5) of the Act. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term "abroad" refers to the alien's last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.

Effect of termination on the alien's H-1B status

One condition of maintaining H-1B status is that the employee continues in the employment relationship with the employer, as described in the H-1B petition. Technically, then, if the employment relationship terminates, the H-1B nonimmigrant will "fall out of status" and can be removed from the United States. Although USCIS has the authority to accept and approve applications for extension of stay or change of status even in such circumstances, that authority is highly discretionary, and is exercised only on a case-by-case basis.  

Does receipt of severance pay and benefits preserve H-1B status after termination of employment?

In an undated, 1999 letter, Thomas W. Simmons, Chief of the Business and Trade Branch of the Legacy INS, stated that H-1B workers who are terminated, but receiving severance benefits for a period of time beyond their termination date, are not considered to be maintaining H-1B status and must either depart the United States upon their termination or seek another immigration status for which they may be eligible. Letter from Tom Simmons, I.N.S., to Harry Joe, Esq., reported in 76 Interpreter Releases, 386-387 (March 8, 1999)

Strikes and work stoppages

Employers are required to notify the Department of Labor (DOL) should any strike or lockout occur in an occupation for which an H-1B worker is sponsored. DOL must be notified in writing of the strike or lockout within three days of its occurrence. 8 C.F.R. 214.2(h)(17)

Contact Sharon Loughran at 1-3805 or [click-for-email] with any questions or concerns that you may have.