H-1B EMPLOYEES ARE OUT OF STATUS

THE INSTANT THEIR EMPLOYMENT IS TERMINATED

On March 27, 2001, a senior INS official confirmed that present INS policy provides that an H-1B employee goes out of status as soon as his or her H-1B employment is terminated (i.e., he or she quits or is fired).  There is no grace period, not even a few weeks or days, in which to find other employment.  [CLICK HERE FOR THE FULL TEXT OF THIS POLICY LETTER]

This radical and unrealistic interpretation of the laws is significant for many reasons.  The first is that the H-1B worker is “removable” (deportable) on the day the employment ends.  Conceivably, a mean-spirited employer could persuade the INS to take the employee into custody and begin removal proceedings!

The second and more likely consequence is that the H-1B employee can no longer extend the H-1B status (through the H-1B petition of another employer) or change to another nonimmigrant status.  (The INS generally requires now paycheck stubs to be submitted with the H-1B petition as proof of maintenance of status).  The result may be that in order to work for another H-1B employer the employee must leave the U.S., then return after the new H-1B petition is approved.

There are several possibilities for avoiding this result.  The policy letter confirms that the late filing of the new petition to extend H-1B status can be excused due to “extraordinary circumstances.”  Also, an employee who continues to receive his or her salary is considered to be “benched”, and still in valid H-1B status, if the salary promised on the H-1B petition continues to be paid.  Terminated H-1B employees should therefore try to negotiate a continuation of the employment relationship (through continuation of the salary) until a new job offer can be found and a new H-1B petition submitted.  Finally, before the actual termination date, the employee may be able to remain in a valid nonimmigrant status by filing an application to change to B-2 (visitor’s) status.