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 20 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. Check USCIS Ruling on Federal Register
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.
What if you cannot find job immediately after losing job, when on H1B status ? 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.
Comments ( 371 )
Hi, employer transferred me offshore and started paying me in local currency to save cost but filed my H1b before moving me offshore. LaterI resigned while I was working in offshore after which they filed withdrawal of petition and it was revoked. are they laible to pay in US for the months they did not tell USCIS that they moved me out and until they withdrew the petition? -Jay
Hello Kumar,
My employer revoked my H1B last week but I do have stamped visa till 2021. My new employer is already in process of filing my H1B. Can I start working as soon as I get receipt or I should wait until I get approval for H1B?
Also, is that ok if I file multiple H1B from different employers?
Can I also start process for change of status(e.g F1) as well simultaneously if in case my H1B will have query or any issues?
I have one question regarding h1b petition .my company is filling h1b for me this year Say incase my h1b doesn’t get picked up in lottery this year is there any way it will affect my spouse’s h1B extension? Does that rejection affect his visa in any way? Looking forward for your reply. Thank You.
No, it will not have any impact.
Hi Kumar,
I had my h1-b approved until March 27th 2019 and recieved a Notice of Intent to Revoke in January which when submitted a response in February 2nd week got revoked last friday. What all options will I have now to stay back?
Priya,
You may do change of status to another visa type. You should discuss with your attorney and make an informed decision as you are in a tricky situation.
Hi Priya
kumar is right .iam in the same situation like you . first try to change the visa status which iam doing now to f1 . we will have some time .summer programs are starting in april 29th email me if you need any details [email protected]
Hi Kumar,
I am in India and my H1 petition is approved in 2018 but H1 is not stamped. I want to resign from this company and want to join my wife(I140 Approved) on H4.
If I resign, company will withdraw my H1 petition.
For going from H4 to H1 in future, Can another company need to transfer my H1 or do I need to go through the lottery process again.
I just want to utilize my H1 as don’t want to go through all process once again as my current employer is not willing to stamp my H1.
Yes, they can apply for cap exempt petition in future as long as your first H1B petition was approved.
My visa expired on Feb 21st. My current employer filed extension on 18th and received FedEx confirmation on 19th. New employer filed a h1b transfer petition on 27th with a start date of Mar 11th, I resigned from current employer and will be joining new company on 18th of April. I will be out of status Will it be problem in future for the dates I worked here (Feb 21st – Mar 18th) if my current employer withdraws the extension petition. Also does USCIS refunds money if the petition is withdrawn before the decision is made.
Thanks
If your I-94 has not expired and your H1B with new employer was filed before you quit your old employer, you are fine. If not, you are in a bridge situation and you need the petitions in the middle to be approved for the final petition approval in the chain. Read H1B 240 day grace period transfer
Thanks for your reply, Yes new employer submitted the H1b transfer petition already and got the reciept. My last day with current employer is tomorrow. In case:
1. If my current employer withdraws my extension petition after my last date, does the transfer petition also gets rejects automatically assuming I94 is still valid( what happens in this case if I94 is expired )
2. Can I stay beyond I94 expiry date which is June 15, 2019 using the 240 days stay with reciept, with just the H1B transfer petition (the extension petition is withdrawn )?
Hi Saurabh,
I’m in an awkward situation.
When I found a new employer and preparing to file an H1B transfer for me, my current employer laid me off. They might revoke my current H1B any minutes, will this affect my new H1B petition?
In this case, should I notify the new employer what happened, so they can file a new petition instead of transfer petition?
Thank you in advance.
Best,
Mia
You get 60 days of grace period, if they do lay off. Check H1B Grace Period Official Rule 60 Days . Your New H1B should not be affected. Yes, you should inform your new company regarding the same and your attorney would very likely submit a requisition letter indicating the same regarding your layoff and submit new H1B. HB transfer is a new petition is nothing but a new petition that is cap exempt. Read H1B Transfer – What is it.
I am in India and my H1 petition is approved but H1 is not stamped. I want to resign from this company and want to join my wife(I140 Approved) on H4.
If I resign, company will withdraw my H1 petition.
For going from H4 to H1 in future, Can another company need to transfer my H1 or do I need to go through the lottery process again.
I just want to utilize my H1 as don’t want to go through all process once again as my current employer is not willing to stamp my H1.
I am h1b holder and filed for adjustment status, when my ead came I worked a week for uber and they paid me.
I used my ead card by working for another employer (uber) as part time job , It seems legally I violated h1b rules(i am on h1b visa for 33 month) even I am still working for my h1b visa employer.
so my h1b status is not valid anymore.
I know thats fine until my i485 will be reject. after that i should leave us because i dont have status.
in that case can i maintening again my h1 visa by extending them for another 3 years?
Can i transfer to another employer to maintain the h1b?
Hi, I have a similar situation. My previous employer sent USICS a withdrawal notice on Nov 19th, 2018 and my new employer applied for an H1B transfer on Nov 23rd, 2018. I have an H1B receipt and waiting for approval. Is it ok to change the client that I’m working thru my employer at this point ? My current employer says that I will not fall under the 60 days period quota since I’m already employed and it should be ok to apply for a new petition at this point.
Hi Saurabh
Currently I am working for a company based on H1B receipt & yet I am still waiting to get approval . However now I have offer from another company , can I join new company based on new receipt filed by new employer ?
After joining new company on H1B receipt, would it affect in anyways if previous company decides to revoke the application or incase if it gets denied ? Please suggest/help .
You may, but provided the petition in the middle gets approved. It is essentially a situation of Bridge and having proper status and approval all through the bridge chain are important. You should discuss with your attorney and take informed decision.
Can an employer revoke expired H1 b petition
There is nothing to revoke, it is already expired !
Hello,
My name has been picked in 2018 lottery and on the US website it is showing that my case was received.
Now due to personal reasons i don’t want to process my H1 visa any further. Is there any way that me or my employer can withdraw my petetion in this scenario??
Yes, your employer can withdraw H1B petition anytime.
My employer terminated the job on 08/26/2018. I came to know that I lost my job on 08/27/2018 through mail. They sent mail without informing me and several others from the company. My employer has not filed for withdraw of H1B yet. They said they can hold withdraw of H1B for 2-4 weeks so that i can find a new employer to transfer H1B. In this case, am i already out of status because they sent me written notice of termination of my employment? Do i have 60 days of grace period?
Since my spouse is in F-1 status, I was thinking to change my status to F-2.
What would be best option for me?
Wait and find a new employer or file change of status to F-2 immidiately?
Ramesh,
You get up to 60 day grace period from the day of your employment termination and it is USCIS discretion. Check USCIS New Rule from 2016
If you have an employer willing to file for H1B, you can file for H1B. If you have no employer ready for H1B, then you may consider doing F2 COS.
I talked to my employer and they said they are not going to send withdraw notice to uscis at least not before December. but they are not going to run my paystub after October 31. So, what difference does it make in my status?
Ramesh,
It does not really. In fact, they need to withdraw your petition, to properly indicated to USCIS that you are not employed anymore. So, it does not matter. plan accordingly based on 60 days grace period.
Hi Ramesh,
i am also kinda same situation. Did you find an answer for this?
I am a physician on an H1B Visa with the added stipulation of the J1-waiver. My employer is adding on additional job responsibilities that were not present at the time of my initial employment 1 year ago. I would like to look into leaving the country and go back to Canada to fulfil my 2 year home country requirement and then possibly returning. Will doing this put me Out of Status?
If employer withdrawn the application, Is there any chance to revoke again?
Hi,
I am on H1b Visa and got impacted by a layoff in my company and my employment was terminated on April 30, 2018. So as of today (May 19), I am on a 60 day grace period. My questions are:
1. Am I eligible for unemployment insurance in California?
2. What are my options? should I go immediately to H4 visa (with my spouse H1B) or should I wait for the new prospective employer to transfer my H1b visa?
3. I am in process of talking to a new employer who is interested and also plans to transfer H1B visa. So if the new employer files (e.g. on 25th may) and The transfer is not approved by June 30 (when my 60 day grace period ends) then will I still be considered out of status (as I already filed for H1b transfer and let’s say I have a filing receipt).
Best Regards,
Amit
My employer has revoked my H1B petition and I received revocation email notification from USCIS on Feb 20, 2018. My I94 is valid till Sep 25, 2018. what is the grace period in this case. Can you please advice if I can transfer to new employer who can sponsor my Visa. If a new employer files a H1B transfer, can I start working at client location on receipt number (normal or premium processing). Could you please advice if 60 days grace period is applicable in this case.
Hi！
I got my h1b in November and took a non paid vacation from 12/15-1/21. After I came back, I was on bench period and only send emails to my employer and discuss project stuff(without report to the office) till 1/29. On 1/29 they terminated my H1b. They refuse to pay me from 1/21-1/29, does it mean I lost my status from 12/15? Or the date should be 1/29 the date they filed me?
Hi,
My H1 visa got approved in September 2016. I went to India for stamping in feb-2017 and succefully done. But my employe notifies me in advance of withdrawal of my H1 visa in jun 2016. My h1 visa got revoked in July 2017.
In this scenario, will I have 60 day grace period ? If answer is yes and still I don’t find any new employer who can transfer my H1B visa within this grace period, what should be my next step to stay in USA legally?
Hi ,
Any guidance on my H1B case will be very helpful ..
My H1B petition got approved in 2016 june [2 years validity upto 2018 september] and my stamping was in pending stageduring november .
Later now its got revoked in january 2017 .
May I know still is it possible to do h1b transfer or filling new H1B in cap exempt is possible ?
i am in india now ..please guide me on further steps…
Regards,
Karthiga
Hello Saurabh,
I will truly appreciate any advice from your end on my current visa situation –
I was on H1-B visa and my company laid me off in early-Feb 2017 without any notice. To avoid being out of status I applied for H4 visa in April 2017 along with H4 EAD work authorization. Approximately how long does USCIS take to provide approval in Change of Status to H4? I have already waited for close to 75 days now.
Secondly, I recently received a job offer from an employer who is willing to file a new H1-B application for me. I wanted to know, if I am eligible to work on receiving the receipt number or should I wait for H1-B approval? Also am I required to leave the country for H1-B approval?
Your advice on this matter will be greatly appreciated.
Thank you.
I am also in the same situation. What did you do? Could you please suggest me.
Hi Saurab , My H1-B transfer is initiated before the “Intend to Revoke” notice to my old employer on my H1-B from USICS. will there be any impact on the new transfer with my new employer? The transfer is initiated in Normal Processing and got RFE. I joined based on transfer receipt .Please throw some light here.
Same thing happened with me now, could you please let me know what happened in your case ?
What happened to your case? On same boat now
What happens if my H1B petition is approved and my employer goes out of business before the start date (1st October).Is there any chance at all of doing an H1B transfer??
I received the lottery receipt and am waiting for approval. The employer who filed my petition is in an unstable situation and might file bankruptcy before october. Can I transfer to another employer in such case?
karamvir singh,
If the petition is approved, you may still try to transfer to another employer by filing a cap-exempt petition. If the petition is not approved, then most likely employer will inform USCIS about their situation and withdraw the petition. That would be end of the petition for all purposes.
Thanks.So I believe I’ll have to wait for the approval and then as soon as I get that, file for the transfer.
After termination from the employer and once they revoke H1B , do I have 60 days grace period to stay in US and look for another job.
Hi Everyone,
I need an urgent advice, my application went for Rfe and after few weeks I got a withdrawal notice status, wanted to ask if I have to go through H1b lottery process again or my case will I come under cap exempt for next year.
Please respond.
Thanks in advance.
My H1b got approved also my status from OPT to H1B converted on October 7 and got cancel. But my employer wrote a letter to USCIS to revoke my H1B on 27th of September 2016. My H1B was approved for 1 year.
So now my question is do I have to apply again for my H1B and it will go to lottery or I will get H1B without Lottery?
If you have gained H1B status, you should be cap exempt for the next 6 years, go find new employer 🙂
I had my H1b revoked by USICS after 6 months of Administrative process.
What are my immediate steps that can help me to get back my H1b petition.
Hi Saurabh
I had my H1b revoked by USICS after 6 months of Administrative process.
What are my immediate steps that can help me to get back my H1b petition.
Hi Saurabh,
I got picked in lottery Apr 2016 and my H1 got approved on sep 2016. On Nov 7 2016 i went for H1B stamping in Hyderbad(INDIA) and got succesffuly stamped. But the bad news is that on DEC 1 2016 i got an email from USCIS that “we revoked the approval of your case, Receipt Number W*********, and mailed you a revocation notice.”
Can you please help me on this?? Can I trasfer my H1B to different employer in this case. ??
Thanks in Advance
Akhil,
I am also kinda same situation. Did you find an answer for this?
Hi Hope & Anil,
any update on your case?
I am in the same situation.
Prema
what was the reason mentioned for revocation?
Did you try to H1B transfer to new employer?
H1B transfer is in process.waiting for the status
Saurab,
The transfer is initiated before the revocation done. will there be any impact on the transfer now?
The transfer is initiated in PP and got RFE. RFE response is done after the revocation of earlier petition.
Please throw some light here.
Prema
Hey Prema, Even me too at the same situation. Did you get any solution for this?
Hi Prema,
I am in a similar situation. Did you receive your H1 Transfer successfully?
Please reply.
Thanks
Not to worry..u r good to go as your transfer initiated before revocation..ask your new employer to respond to RFE..good luck
Hi saurabh,
I got h1b visa stamped on 22 Dec 2015 and travelled to USA.
On 20th July 2016 my contract over and employer revoked h1b on 27th July 2016.
I came back to india on 29th july 2016.
Now will I be cap exempt with new employer or not?
As new employer telling that I have fair chances of getting h1b cap exempt, as it has been revoked in less than a years time.
Hi Saurav,
My H1b transfer approved on May 31st 2016 and joined new employer on June 1st 2016. Previous employer revoked H1B on Aug 2016. My visa stamping is done with previous employer. Now while travelling do I need to go for stamping again with new employer if old stamping is not expired yet?
Hi Saurabh
I worked for employer A till March 6th 2016 and on 7th March i received the transfer receipt and joined with my new employer. My old employer usually runs my payroll on March 15th and he refused to run payroll for the month of February citing reason i left the company before payroll is being run. He also threatened me saying he will revoke my H1B effective from 31st of January. I would like to understand whether a back dated revocation of visa is possible or not. My transfer with new employer is in RFE status. Old employer has revoked my H1B and uscis sent him approval on 16th of September 2016. please suggest what should be done in this situation.
Best Regards
Sree
I’m almost in the similar situation. If you got answer to your questions or if your problem is solved, please help me. I will be very thankful to you.
I’m almost in the similar situation. If you got answer to your questions or if your problem is solved, please help me. I will be very thankful to you.