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

In Apply H1B Visa by Guest Author342 Comments

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.

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 contact info  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.

 

Related Articles


Comments ( 342 )

  1. Dr Feller

    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?

  2. Amit

    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

  3. Kiran

    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.

  4. William

    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?

  5. Raj V

    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?

  6. karthiga

    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

  7. COS_H1 and H4

    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.

  8. Raju

    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.

  9. karamvir singh

    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?

    1. administrator
      Saurabh

      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.

      1. karamvir singh

        Thanks.So I believe I’ll have to wait for the approval and then as soon as I get that, file for the transfer.

  10. H1b_grace

    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.

  11. Pallavi Sethi

    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.

  12. Ahmed Goni

    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?

  13. vinay

    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.

    1. vinay

      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.

  14. Akhil

    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

        1. prema

          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

          1. Rajesh

            Hi Prema,

            I am in a similar situation. Did you receive your H1 Transfer successfully?

            Please reply.

            Thanks

          2. Raghu

            Not to worry..u r good to go as your transfer initiated before revocation..ask your new employer to respond to RFE..good luck

  15. Lilac

    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.

  16. Suresh

    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?

  17. sree

    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

    1. Jana

      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.

Leave a Comment

Comments Policy :
  • Comments are to drive conversation, add your thoughts, experiences, ask questions!
  • Do NOT write hate speech, swear words, or get into fight. Maintain etiquette
  • Enter your Name, valid Email, URL(optional - Facebook, LinkedIn profile URLs).
  • Your email will NOT be published. Do NOT post any phone numbers, email-ids
  • Do NOT post any links from other websites, unless official sites, University websites.
  • By submitting your comment, you agree to Term and Conditions of our website.

This site uses Akismet to reduce spam. Learn how your comment data is processed.