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Basic Concepts

Nonimmigrant status that is petition-based, such as H-1B, H-1C, H-2B, H-3, L-1A/L-1B, O-1/O-2, P-1/P-2/P-3, Q-1 or R-1, as well as some non-petitioned statuses, such as E-1/E-2 and TN, are generally regarded as terminated when the employment associated with that status ends. Dependent family members who hold derivative visa status also lose their status when the principal nonimmigrant's status ends.

There is no grace period when one’s nonimmigrant status ends, so strictly speaking a nonimmigrant is "out of status" beginning upon the termination of the approved employment relationship.

Being "out of status" (regardless that the expiration date on the nonimmigrant's Form l-94 Arrival/Departure Record might not yet have arrived) means that the U.S. government may detain the nonimmigrant and/or begin removal (deportation) proceedings.

Please click here for a chart comparing the impact of employment termination on various immigration statuses.

H-1B Specific Issues

Portability

Portability applies only to foreign nationals who have been granted H-1B status or have been issued an H-1B visa. Portability allows such a person who is present in the U.S., to begin work for a new employer as soon as the new employer files an H-1B petition with U.S. Citizenship and Immigration Service ("USCIS"). Maintaining lawful H-1B status is not required for portability. However, if the new employer's H-1B petition asks USCIS to extend the period of time for which the H-1B nonimmigrant may remain in the U.S., USCIS may deny the extension of stay request if the nonimmigrant was not maintaining lawful status on the day the new employer filed its H-1B petition. If USCIS were to approve the new employer's H-1B petition, but deny the requested extension of the nonimmigrant's stay, the nonimmigrant would be required to depart the U.S. and apply for either an H-1B visa at a U.S. consulate or for readmission to the U.S., or both, in order to resume lawful H-1B status in the U.S. Please see Portability FAQs for more information. For additional information, please see http://www.uscis.gov/files/pressrelease/ChangesH-1BProgram_112100.pdf, Q10, Q11 or Q12.

Maintenance of Status

USCIS has said that an H-1B nonimmigrant who is present in the U.S. during a severance period (and who does not meet the U.S. Department of Labor’s “benching” standard applicable to H-1B nonimmigrants) is not considered to be maintaining status. However, in an H-1B case where a new employer requests an extension of the nonimmigrant's H-1B status, USCIS may look at such indicators of employment as the recency of the nonimmigrant's latest earnings statement deciding whether to grant an extension of stay.

Impact on Green Card Application

Most employment-based applications for permanent resident (green card) status are employer-sponsored. By employer sponsored, we mean that the foreign national's permanent resident case is the result of efforts initiated by the employer - not by the foreign national.  The majority of permanent resident cases involve three stages:

1. labor certification application;
2. immigrant petition; and
3. either an adjustment of status or a consular processing application.

If a nonimmigrant's employment ends before the nonimmigrant is granted permanent resident status, as a practical matter most permanent resident cases end without the nonimmigrant's being able to obtain permanent residency.  Only if a foreign national is at the third stage and has an unadjudicated adjustment of status application pending with USCIS may the foreign national change jobs or employers. However, the new job must be in the same or similar occupational classification as the one for which the immigrant petition was filed. See Section 106(c) of the American Competitiveness in the Twenty First Century Act which is reproduced at http://www.uscis.gov/files/pressrelease/I140_AC21_8403.pdf. Essentially, the only employer-sponsored permanent resident cases that may continue despite employment termination are those where the foreign national has had an unadjudicated I-485 adjustment of status application pending with USCIS.