H1B Revoked, Withdrawal, Termination – By Employer? USCIS? FAQs

by Emily Neumann, Attorney at Law. “Help! My employer is going to revoke my H1B visa. What do I do now?” is a common call that I receive at Reddy & Neumann, P.C.

H1B Revocation certainly will impact the beneficiary of an approved petition. Let’s first look at some of the basics around H1B withdrawal vs. Revoke and address more details on the same in this article and common FAQs.

H1B Withdrawal vs Revoke Difference?  USCIS or Employer?

Firstly, an employer cannot revoke an H1B. Only the immigration service, which is USCIS, can take that action, and the regulations specify exactly when revocation is required. Let’s look at each of the terms “H1B withdrawal” and “H1B Revoke” terms in detail.

H1B Withdrawal

• An H1B withdrawal is a situation where the employer who sponsored an H1B visa requests USCIS to withdraw an H1B petition sponsored by them.
• This is voluntary by the employer and is done when either the job is terminated by the employer, the employee has left them, or they do not wish to sponsor H1B anymore.
• This can also be in situations such as the company is also shutting its doors or there are layoffs in the company.

H1B Revoke

• An H1B revocation is done by USCIS or any other government agency, such as the Department of State or others, for other reasons to cancel an H1B visa.
• The common reasons for an H1B revocation are due to fraud, misrepresentation of facts, and violations by the employer or applicant, including non-compliance.
• An employer cannot directly revoke an H1B visa, only an Immigration service such as USCIS can revoke an H1B petition.

There are only two circumstances in which the immigration service, such as USCIS, will automatically revoke an H1B:

1. The sponsoring employer goes out of business; or
2. The sponsoring employer files a written withdrawal of the petition.

When an employer says they will revoke a person’s H1B, all they can really do is request withdrawal of the petition. Once the immigration service (USCIS) receives a written request to withdraw, it will lead to the automatic revocation of the petition.

Also, it is important to point out that, although it is harsh, an employer is actually required to notify the immigration service when employment is terminated (either by the employee’s resignation or the employer’s decision to fire).  Visa holders may feel that an employer chooses to notify the immigration service out of spite, but they really have no choice.

According to 8 CFR 214.2(h)(11)(i)(A):

“The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility… If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition. “

Below is the screenshot of the actual regulation 8 CFR 214.2(h)(11) that shows the guidelines for revocation.

Can an Employer Revoke the H1B after it is Approved?

Technically, an employer cannot revoke an H1B. Only USCIS can revoke an H1B Visa. What an employer can do is send a request to USCIS asking for the withdrawal of the H1B petition sponsored by them for the applicant.

When an employer says, they revoked the H1B for an applicant or their employee, all they are saying is that they requested USCIS to withdraw their petition. Usually, after USCIS receives the withdrawal request, they revoke the H1B approval. The context of revocation is important. If it is just a normal request to withdraw, the revocation done by USCIS has no other consequences, unless there was fraud or any other serious issues involved in it.

Can a revoked H1B be transferred to another company?

This totally depends on the reason for the revocation of the H1B. If the H1B was revoked for reasons such as fraud, misrepresentation, non-compliance or any other bad reasons, then you cannot transfer your H1B to another company.

If the H1B was revoked by USCIS, based on a request by employer due to the end of the employment, Layoffs or the applicant resigned, then in such cases, you can transfer your H1B to another company. In this cases, though the word revoke sounds bad, the context of the revocation is important for the transfer eligibility.

“Case Was Automatically Revoked” H1B Case Status USCIS?

When you see the message “Case Was Automatically Revoked” for your H1B case online after you changed employers or was let go as part of layoff, you may be in a panic. The reality is that, as part of the law, employers are supposed to request USCIS to withdraw their H1B petition for an employer if they are no longer employed with them.

When an employer requests USCIS to withdraw an H1B petition for an employee after resignation or layoff, you will see the online status as “Case Was Automatically Revoked” as shown in th below screenshot. In such cases, there is nothing to worry, it is normal process by USCIS to revoke such petitions. If your H1B was revoked due to fraud or misrepresentation, then is when you need to worry.

What are Employee Options when they know about Layoffs?

In the best-case scenario, the employee will be given advance notice of termination and withdrawal. If this occurs, the employee should immediately begin making arrangements to either obtain a new job offer or look for other possible visas to remain in the country.

Until 2017, there was no concept of the grace period. As per new provisions that were effective from Jan 2017, employees can get up to 60 days of grace period to find alternative employment. or pursue other options. You can read more at: H1B Grace Period 60 Days Ruling info.

Employees’ options are not limited to just finding an other employer; they can change their status to another visa like a dependent visa, tourist visa, study visa, etc. Also, if they are eligible, they can even apply for compelling circumstances EAD as well. You can read full details on USCIS website – Options for Nonimmigrant workers.

Lost job on H1B Visa without prior notice – What can you do?

“But what if I can’t find a new job in time or my employer does not provide advance notice?” This is a tough situation, but not impossible. The most important consideration is to act quickly. The longer you take to decide on your next action, the more likely the outcome will require you to leave the country (at least temporarily). 

In the event of a sudden termination, if you are able to find a new job quickly enough, you may still be able to obtain the approval of an H-1B transfer while you remain in the country by filing the application “nunc pro tunc.” I should point out that if you a file an H-1B transfer after you have stopped working for the current employer (i.e. you are not in status at the time of filing), then you cannot start working for the new employer based on the H-1B transfer receipt notice. 

Therefore, I usually recommend filing in premium processing and also explaining the situation. The “nunc pro tunc” gives the immigration officer discretion to approve the transfer and issue a new I-94 card even though you were out of status at the time of filing. This is more likely to occur if the transfer is filed quickly; a long delay in filing will likely lead to an approval without a new I-94 card. In that situation, you must exit the country, but can re-enter with a valid H-1B visa stamp. You get up to 60 days grace period as per the ruling from 2017, so if you act quick should be fine.

What is H1B Grace period ? What are your options?

If the prospects for a new job offer are not looking good, you may look into changing status to another visa type, such as H4 (if your spouse also holds an H1B) or F1. Again, this should be filed before you go out of status. If another visa is not an option, it may be best to leave the country temporarily while you continue to look for another job.

A new employer can file a new H-1B petition for consular processing (since you are outside the country), but you would not be subject to the quota since you were previously counted. There are some exceptions, so you should definitely consult with a qualified immigration attorney to confirm whether you are subject to the cap or not. Also, I should point out that there are other types of revocations not discussed here. The main goal of the article is to help those in H1B status who may be facing termination of employment. You can read more at: H1B Grace Period 60 Days Options.

Common FAQs

Thanks to Emily for writing the guest article for us. Please reach out to using her using her for any immigration issue, she is a highly qualified immigration attorney and can help you with your case !

————————————-About the Author————————————–

Emily Neumann practices business immigration law and is a partner in Reddy & Neumann, P.C. in Houston, TX. Neumann writes a blog on immigration law ( immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news.