H1B Revoked, Withdrawal, Termination – By Employer? USCIS? Oh My! Options

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, but first, a little lesson on the proper terminology.

H1B Revoked – What does it mean?  By USCIS or Employer ?

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 in 8 CFR 214.2(h)(11). There are only two circumstances in which the immigration service 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. “

What can an employee do when you know in advance you will lose  job or be terminated from employment  on H1B Status?

In the best case scenario, the employee will be given advance notice of a termination and withdrawal. If this occurs, the employee should immediately begin making arrangements to either obtain a new job offer or look to other possible visas to remain in the country. Once a termination of employment occurs, the H-1B worker is immediately out of status; there is NO grace period.  Therefore, whenever possible, action should be taken to file an H-1B petition for change of employer (i.e. H-1B transfer) or to file a change of status to another visa type before the termination occurs. Once the H-1B transfer or change of status is filed, if the employer later notifies the immigration service of the termination or requests withdrawal, it generally would not impact the pending application or the immigration status.

Updated : As per new USCIS rule that was effective from Jan 2017, employees get up to 60 days of grace period to find alternative employment.   Read H1B Grace Period 60 Days Ruling info.

Lost job on H1B status without any prior notice, laid off, or sudden termination – 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 if you cannot find job immediately after losing job, when on H1B status or in 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.

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.