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

In H1B Visa by Guest AuthorUpdated : 458 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 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.

   

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Comments ( 458 )

  1. Satish

    My H1B amendment for a new role with title change and change in location with the same employer was filled recently in premium. If I decide to stay in my current role, is that OK? What options do I have if want to continue in my current role?
    PS: I have a valid H1B VISA for my current role valid until Oct 2020.

    1. administrator
      Kumar

      Satish,
      Technically you can continue doing what you are doing until the validity of the current role. Post that, you can apply for extension. talk to your attorney.

  2. Manish D

    Employer filed for my green card in 2012 and I have my I-140 approved. They filed for my H1-B renewal in Aug 2019 and I have a receipt from immigration but do not have the approval in hand yet. I lost my job during recent reduction on January20, 2020, and my current H1-B expired on Feb 1, 2020. I had only 10 days to find a new employment and file for a new H1B. Therefore, I had to leave the country with my family.
    I have lived in the United states for past 15 years with my wife and 3 kids, and I sincerely want to move back to the US as early as possible. Please help.

    1. administrator
      Kumar

      Manish,
      Sorry to hear about your situation. You are cap exempt because you have I-140 approved. These are difficult times for many, all I can suggest is continue to apply or use your network in US and try to find a job. Stay positive. Also, you can find a role in your home country and join an MNC that has US Presence, that option may work out in a year as they can try for L1, just a backup option.

      1. Manish D

        Hi Kumar,
        Thanks for replying. If my current H1B extension petition gets withdrawn from USCIS.. Can still a new employer file a new H1b extension since I have I-140 approved??

  3. Biswajyoti Borboruah

    Hi,

    I am currently working for a new company(B) and my client (due to impact of corona virus) has started the lay-off process and has given me the last date as 3rd of April, 2020. I had joined company B after the getting the approval notice of my H1B transfer (valid until 12/10/2021). Because of the current situation, can I now join my previous company(A) where I had the approved petition until 12/10/2021.
    1. Will the petition be revoked by my old employer?
    2. Is there a way to check the status of my petition held b my old company?
    3. When I check the status of the old petition online, it still says “Case Was Approved And My Decision Was Emailed”. Does this mean that the petition is still not revoked?

    Kindly help me with the details.

  4. Karthikeyan

    Dear Admin,

    Thank you for valuable information on USA immigration systems. Very clear and helpful for many. Much appreciated.

    I have one question. Please clarify the same.

    I had traveled to USA on deputation through H1B on Feb 2016. This is my first trip to the USA on H1B. I had visa only till March 2017 and applied for the H1B Visa extension before March 2017 and got it approved and visa till March 2018.

    In 2018, I had applied for the extension of H1B Visa through premium processing. Unfortunately my petition was denied on June 2018 and my X employer requested me to leave the country within 2 weeks of time with my family. I had resigned employer x and applied for H1B Visa transfer to my employer Z after the denial in USA. Even my H1B Visa transfer also got denied and left the USA and came back to India.

    In Between, Oct 2018 my employer X sent my H1B Visa revocation to USCIS.

    My question: Am i eligible for H1B Visa transfer to different employer?. The H1B Revocation notice will hamper my H1B Visa transfer?What is the process and rule? Out of 6 years, I had utilized only close to 3 years of H1B Visa.

    Could you please clarify my questions and do the needful.

    Thank you again.

    Best,
    Karthik

    1. administrator
      Kumar

      Karthikeyan,
      Yes, you are eligible for cap exempt H1B. Employer cannot revoke, they only can withdraw. You can still use 3 years by filing a transfer petition as cap exempt.

  5. sajid

    What are the alternative of H1b withdrawn/revocation.

    1) I have my f1 visa till july 2020 and can i take in university and do the border crossing ?

    2) can i file for h1 transfer in the future to new employer after getting the project ?

  6. Ravi

    Hi,

    I am in my home country. My H1B is approved in 2016, later in August 2017 went for H1B stamping but received 221g administrative processing from us consulate. In May 2018 my H1B status is “Withdrawal Acknowledgement Notice Was Sent”.
    If I apply for H1B in 2020 Do I need go through lottery again?

    1. Sum

      Need advice , H1 transfer with Company B(current client) is approved and H4s are pending , current company A (Current Employer) wants to work for them for 6 more weeks and they will also file the extension (H1 and H4) as their H1 and I94 is expiring soon , regarding this I have few questions

      1. will there be any issues(for H1 or H4) if I work for them for 6 more weeks and then join B and later probably A will withdraw the petition …

      2. what will happen in the following cases (If I am working with Company B after 6 weeks ) and

      a.If H1 extension from Company A gets approved ?

      b. If H1 extension from Company B gets denied ?

      c. if H1 extension is withdrawn by A before any decision is taken by USCIS ?

      Thanks

      1. administrator
        Kumar

        1. Should be fine. Just discuss with attorney on the timings and start dates.
        2. You said B is already approve, why would it get denied.

        In short, if you have valid H1B, you are fine…Don’t overthink. If you want to continue with A, go for it, it is fine…You do not have to join B as it is not COS.

  7. Kumuda

    Hai,

    I got my h1b approved in oct 2018 and worked for 6mnths on H1. In april i went to stamp in india and got 221g and and after 6mnths I received denial mail as the case is denied and sent back to USCIS for review and possible revocation.Now after 3months I received “ revocation notice was sent “. Is my h1b still valid and can i transfer to another employer?Am I eligible for cap exempt? What are my options?

    This is my 1st h1b and no stamp. I changed my status from f1 to h1.

    Thank you

    1. administrator
      Kumar

      Kumuda,
      It depends on the reason for revocation. If it was revoked for fraud, you may not be able to use it as cap exempt. Check with your employer on the reason and the letter, to be clear.

  8. Nandanvishwa

    Hi,
    I have a fresh approved petition valid for next two years. I have not traveled to US with this visa. This was filed by my current employer. There might be chance of me loosing job with current employer due to economic situations.

    What are my options now?
    1. What will happen to approved petition if I find another job before termination
    2. What will happen to approved petition if I find another job after termination

    Will my petition be transferred to new employer anytime in future without loosing it’s validity? Or it should be done within certain time frame?

    Thanks in advance
    Nandan

    1. administrator
      Kumar

      Nadnan,
      1. Well, it will expire, if nothing is done.
      2. You can find a new employer and try to apply for transfer as cap exempt. But, the trick is cap exempt rule is slightly grey area. As you have not been to US and have not worked on H1B or got H1B stamped, sometimes USCIS can question you were not given H1B status…but, there are successes as well. If you have an employer willing to apply as cap exempt, they can file for transfer and give it a shot.

      1. Nandanvishwa

        Kumar,
        For the new employer who is willing to transfer and apply cap exempt, what documents needs to be usually provided? I have receipt number and petition valid to date (July-2022). The current organization has not given me the hard copy of the approval notice.

          1. Gargi

            H1bvisa was revoked suddenly for a friend but the person has visitor visa too thats valid . Is change of status possible during Grace period

          2. administrator
            Kumar

            Gargi,
            It does not get revoked suddenly, only employer can withdraw petition…it may happen, if there was fraud. Just having visitor visa is not relevant, you need to have status for the same. Read US Visa vs. Status

  9. Raj

    Hi,
    My employer received an NOIR on my approved case by 2019 Oct , the reason mentioned was SOW what i submitted for approved visa was expired. So we replied back with new client letter and other document. After few months, yesterday the case status was updated to “Revocation notice was sent”.
    will i able to transfer my h1 to different employer and continue work here?
    what are possibility of that h1 transfer approval?
    how long am allowed to stay in state with that revocation?

    some information on this will be really helpful

    1. administrator
      Kumar

      Raj,
      If you have never had H1B approved, then you will not be able to use it. If you already had H1B status or approval before this current one, then you can use it for transfer.

  10. Neal

    Hey Kumar,

    In a real time crunch situation and would really appreciate a quick response. I’m currently traveling and learnt I was laid off. My employment termination date is expected to be Jan 31 2020 but I’ve lost access to my company email etc.

    I have a valid H1b stamp from a previous employer along with an approved i-797 transfer notice from my current employer (one where layoffs occurred). Questions –
    1. Can I travel to the US without any issues?
    2. When would my grace period begin?
    3. Anything else I should know? (waiting to talk to the attorneys)

    Thanks in advance!

      1. administrator
        Kumar

        Sorry, I missed this part. If you have not left US yet, do not leave US now. Use your 60 days grace period, get a transfer approved and then travel,

    1. administrator
      Kumar

      Neal,
      Sorry to hear about your situation.
      1. No, you should NOT. As you do not have a job, if they ask any questions or additional info at Port of entry, you are at risk of being barred for fraud as you know that there is no job for you in US now.
      2. Your grace period only applies, if you are in US…not sure, if that applies to you now.
      3. The best thing to do is, you find another employer now, do H1B transfer and then re-enter US.
      Do talk to attorneys and make informed decision.

  11. Chandrika

    Hi Kumar,

    Employer A filed my initial petition which was approved from 10th Oct 2016 to 10th Aug 2019. (receipt date 21st Apr 2016) – never traveled with this petition.

    Same employer A, filed an amendment petition which was approved from 3rd April 2017 to 4th April 2018 (receipt date 28th Mar 2017). – I traveled to US with this stamping and worked there from May 2017 till July 2018. (employer A filed an extension after April 2018, however it got rejected and i traveled back to India on July 2018.

    Now I am in India from July 2018, both of my petitions got revoked now (i checked the status in USCIS a few days back). My visa expired on April 2018. Both petitions revoked.
    1st petition revoked on Dec 2018.
    2nd petition (amendment) revoked on Feb 2019.

    In this case, Am I eligible for cap exempt petition? If yes, till what date i will be cap exempt?

    your help is much appreciated.

    Thanks.

    1. administrator
      Kumar

      Chandrika,
      As you had H1B approved at least once and you worked on it, you are cap exempt. The denials do not matter, unless they are revoked for fraud. Usually, they revoke after the withdraw was submitted by employer, so it should be fine. You will be cap exempt until you use 6 years of H1B, check H1B Recapture Rule

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