Many H-1B workers are, unfortunately, losing their jobs because of the current economy. They have many questions about their ability to stay in the US, to change to another status, and the effect of a layoff on any permanent residence (green card) process
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1. How long can I stay in the US after my H-1B job ends?
A person in H-1B status is legally authorized to remain in the US only as long as they are employed with the H-1B petitioner (“sponsor”). If the employee is laid off, the H-1B worker and dependents in H-4 status immediately lose their status. In reality, most people need at least a few weeks to pack up and sell their residence, take children out of school, etc. While staying in the US to finalize arrangements for leaving is not strictly “legal”, it is very common for foreign nationals to do this.
Laid-off H-1B employees could file to change to visitor status to allow them remain in the US to make repatriation arrangements. As long as the application is filed while the worker remains in status, s/he will remain in status for up to 120 days while the change of status application is pending. The worker will also have to file a new non-immigrant application if s/he stays in the US and finds a new position.
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2. Can I stay in the US to look for another job?
Although you are out of status as soon as you end your H-1B position, many people look for new employment before deciding to return to their home country. The gap between when a laid-off H-1B worker ends their job and when they file the new H-1B petition is not strictly a period when they are in status. However, CIS will usually overlook a short gap in approving a change of employer.
The US Citizenship and Immigration Service (CIS) will commonly approve a new H-1B petition as an automatic change of employer if the H-1B holder can provide a paystub less than 30 days (and sometimes even 60 days) old. This means that CIS may approve the change of employer even if the employee has not worked for the former employer for a month or more.
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3. Can I start working for the new employer immediately?
If the H-1B worker manages to find a new employer before leaving the old job, or very soon afterwards, s/he might be eligible for H-1B “portability.” This allows a H-1B worker to start working for a new employer as soon as the new H-1B petition is filed, rather than wait for it to be approved. Another piece of good news is that the H-1B worker should not be subject to the H-1B cap since s/he was already counted.
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4. What if CIS does not approve a "change of employer" petition?
If a new employer files a new H-1B petition and CIS does not approve an automatic change of employer, CIS might still approve the H-1B as a “notify.” This means the worker must leave the US, get a new H-1B visa at a consulate if the existing visa has expired, and return in the new H status to “effect” the new employer’s H-1B.
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5. What are my employer’s obligations if I am laid off?
The H-1B regulations require an employer to pay “the reasonable costs of return transportation of the alien abroad” if the H-1B worker is dismissed before the H-1B period ends. This usually means a one-way flight or bus/train ticket to your place of last residence outside the US.
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