You may be wondering what options are available to you if you are in nonimmigrant status in the United States and your employment has recently terminated either voluntarily or involuntarily.
Under 8 CFR 214.1(l)(2), workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications receive a discretionary grace period following the end of their employment. During this time workers and their dependents are considered to have maintained their nonimmigrant status. The grace period can last for up to 60 consecutive calendar days following cessation of employment or until the end of the authorized I-94 validity period, whichever is shorter. Unlawful presence will begin to accrue at the end of the 60 day period or after the I-94's expiration.
Several options are briefly described below. Contact the Law Offices of James D. Eiss if you would like to schedule a consultation to discuss your unique situation.
1) Port to a new employer if possible
Workers in H-1B status are able to port – or begin working for a new employer – with the proper filing of a new, non-frivolous H-1B petition by a new employer. You are able to begin working immediately upon proper filing of the petition with USCIS or as of the requested start date on that petition, whichever is later. You are authorized to continue working for the new employer until USCIS makes a decision on the petition. If the new petition is denied, you may continue working for your previous H-1B employer if your authorized period of stay is still valid.
Those with a Form I-485, Application to Register Permanent Residence or Adjust Status based on a Form I-140, Immigrant Petition for Alien Worker that has been pending for 180 days or more also have the ability to port. The new offer of employment must be in the same or similar occupational classification as the original I-140 job offer. The new job can be with the same or a new employer. In this instance, eligible employees must have a valid underlying Form I-140 in the 1st, 2nd, or 3rd preference category. Applicants must request to port by submitting a Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j).
2) Apply for a change of status
Those unable to port during the grace period may be eligible to change status. The change of status application must be properly filed with USCIS before the end of the grace period in order to avoid accrual of unlawful presence.
Possible options include:
- Change of status to a dependent (i.e. E-1S, E-2S, F-2, L-2S, H-4, O-3, TD) if your spouse holds currently valid nonimmigrant status. Note that some, but not all, dependent classifications give employment authorization.
- Change of status to another nonimmigrant status with a new offer of employment, where possible. For example if you were previously working in L-1 status then you may find a new job opportunity allowing you to work in TN, H-1B1, or E-3 status. The possibilities will vary on a case-by-case basis by looking at the job offer and your nationality. The change of status will need to be approved before employment can begin. Premium Processing may be available in some instances for an additional fee.
- Change of status to F-1 student. If you are planning on returning to school to pursue a new degree, you may seek to pursue this option. You will need to first be admitted to a US university before filing for a change of status. You will not be able to begin attending class until the change of status is approved.
- Change of status to B1/B2 visitor. Although B1/B2 visitor status does not allow employment in the United States, a timely-filed and non-frivolous application to change status can allow you more time to look for new employment. If you do find employment, another change of status would need to be filed and approved before you begin working. B-1 business visitor status may be appropriate, for example, if you are seeking to explore investment opportunities for an E-2 Treaty Investor visa.
You will be issued a new I-94 document upon approval of your change of status. Departure from the United States following an approved change of status will require obtaining a visa from a Consulate abroad before returning to the United States.
3) Apply for Adjustment of Status
You may be eligible to file a self-petitioned I-140, Immigrant Petition for Alien Worker with a Form I-485 Application to Register Permanent Residence or Adjust Status. Immigrant classifications that allow for self-petitioning include EB-1 Extraordinary Ability, EB-2 National Interest Waiver, or EB-5 Immigrant Investors. The qualifications for each classification vary. Your ability for file a concurrent Form I-485 with the Form I-140 will be determined by the visa bulletin for the month you apply.
You may also file for Adjustment of Status if you have a pending or approved I-140 or I-130 immigrant petition and your category/country of birth are current in the visa bulletin.
A properly filed Form I-485 will allow you to remain in the United States while the application is pending, though you may wish to maintain an underlying nonimmigrant status wherever possible. You may also apply for an Employment Authorization Document (EAD) based on your pending I-485. Note that Adjustment of Status applicants are generally not able to travel outside of the United States without first obtaining an Advance Parole document. Limited exceptions are available. Departure from the United States will result in abandonment of the I-485 application.
4) Compelling Circumstances EAD
USCIS has an EAD category available for those who are the beneficiary of an approved I-140, do not have an immigrant visa available based on the visa bulletin, are currently in the United States in E-3, H-1B, H-1B1, L-1, or O-1 status, and can show compelling circumstances requiring employment authorization.
This discretionary EAD requires filing a Form I-765 Application for Employment Authorization including evidence of compelling circumstances, including:
- Medical documentation to show you or your dependent are facing a serious illness or disability;
- Evidence that your employer has retaliated against you;
- Evidence of other substantial harm to you;
- Evidence of significant disruption to the employer; or
- Other evidence that demonstrates you are experiencing compelling circumstances.
You will not be authorized to work until USCIS approves your Form I-765 and you receive the EAD. If you begin working on your compelling circumstances EAD, then you will no longer be maintaining nonimmigrant status. However, you will be considered to be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid.
Additional information regarding this EAD is available here.
5) Depart the United States
Departing the United States before the end of the 60 day grace period or I-94 expiration is another way to avoid accruing unlawful presence. The H-1B or O employer/O petitioner must cover the reasonable costs of transportation to your last place of foreign residence where applicable if the H-1B or O worker chooses to leave the United States.
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