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Resignation on H1B

New York, NY |

Hi Sirs/ Gurus,
I may have to immediately resign from an Indian IT company as they want to send me back to India and I want to continue here. I have valid H1B for another 10 months and it can be extended there on. I don't have a job in hand yet. I have around 15 days.

I have following 3 questions.

1 - If I resign and they release me say today, How many days from today do I have legally to stay in US and find another job and the employer who can transfer my H1B?

2 - Do Indian IT companies revoke the H1B after the employee has resigned?

3- I heard, In such a case you may change ur status to a visitor visa, Is this true? how is it done?

Attorney Answers 3


1. Only resign when you secured a new employer and after that employer already filed a new H-1B petition on your behalf already. Otherwise you will have to depart the US within a few days from resigning.

2. There is no way we can know this here on Avvo. A competent attorney representing the employer always recommends the withdrawal of the LCA filed with DOL, as well as the I-129 filed with USCIS.

3. You may apply for COS to visitor on Form I-539. Strongly advised to seek advice of an I migration lawyer to help you and increase your chances of success. You will be able to remain in the US while your COS application is pending, which takes 4-6 months to process and adjudicate. In the meantime you will hopefully be able to secure another H-1B employer.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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1. You should file for a change of status or employer 'before' you resign. Otherwise, the USCIS may deny your extension of stay as a matter of discretion. This will mean that you are an overstay, which can cause challenges with consular processing as well as your right to remain. It may be best to consular process, but that depends upon all of the facts. More information is needed.

2. Every company is different, but should revoke upon resignation or a soon thereafter unless a company wishes to accommodate a former employee. You may want to discuss your concerns and consider giving your employer a two to four week notice, if you think its possible. You may want to withold resignation until you find a new job and file for a change of employer (this is best).

3. This is risky, but has its benefits depending upon all of the facts. However, this may merely prolongs what may be inevitable. If denied, an attempt to change employer while in the U.S. may be denied.

I strongly recommend an appointment or teleconference with a competent and experienced immigration and visa attorney. Your conception of the law and USCIS discretion seems questionable.

This is general information, not legal advice, and does not create an attorney client relationship.

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I agree with my colleague. Find a new employer and have Petition for H1-B filed before resigning or file an I-539 (Change of Status) application, also before resigning. If you resign with neither of these having been filed, you will be out of Status. You owe it to yourself to contact a lawyer, whether myself or one of my colleagues. Good luck to you.

Dean P. Murray
The Murray Law Firm
560 Sylvan Avenue
Englewood Cliffs, NJ 07632
T: (201)875-2600
F: (201)549-8700

Mr. Murray's response is NOT legal advice and does NOT create an attorney-client relationship. You should NOT rely on this response. Mr. Murray's response was generated without conducting a full inquiry as would occur during a face to face attorney-client consultation. It is likely that the response above may be made less accurate, or become entirely inaccurate, as you, i.e. the questioner, disclose additional facts that should only be discussed during a private consultation with an attorney. I strongly recommend that you consult an attorney who is licensed to practice law in your state (or, in the case of immigration law, and attorney in ANY state), whereupon all relevant facts will be discussed. All responses posted by Mr. Murray on are intended as general information for the education of the public, and not for any specific individual.

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