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USCIS PROVIDES LIST OF OPTIONS FOR NONIMMIGRANT WORKERS FOLLOWING TERMINATION OF EMPLOYMENT


On December 19, 2022, the U.S. Citizenship and Immigration Services (USCIS) provided information for nonimmigrant workers whose employment was terminated, either voluntarily or involuntarily. The options include a 60-Day Grace Period, Portability to a New Employer, Change of Status, and more. 60-Day Grace Period Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter. During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request. Alternatively, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status (such as B-2 visitor nonimmigrant status) or an application for adjustment of status, if eligible. Portability to New Employer Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. This is commonly referred to as “porting." Change of Status Workers may apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse by using the up to 60-day discretionary grace period. Please note: The timely filing of a non-frivolous application to change status will toll, or stop, the accrual of unlawful presence until the application is adjudicated. For example, if an individual files a non-frivolous application to change status before the end of the applicant’s 60-day grace period, they will not accrue unlawful presence while the application remains pending even after the 60-day grace period has elapsed. If the application is ultimately approved, then the individual’s status is changed and is considered to have been in a period of authorized presence the entire time the application was pending. If the application is denied, then the individual starts to accrue unlawful presence the day after the denial decision. Change of Status and Employer Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored nonimmigrant status in the same or different status. The timely filing of a non-frivolous change of status application will prevent the accrual of unlawful presence until the application is adjudicated. Such a filing alone will not, however, confer employment authorization in the new position while the application is still pending, and will not extend employment authorization if the original classification is no longer valid. Adjustment of Status Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 Extraordinary Ability, EB-2 National Interest Waiver, or EB-5 Immigrant Investors. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD). Period of Authorized Stay - Compelling Circumstances Employment Authorization Document Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:

  • do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and

  • face compelling circumstances.

According to USCIS, a compelling circumstances EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent residence by preventing the need to abruptly leave the United States. Workers who begin working on a compelling circumstances EAD will no longer be maintaining nonimmigrant status but generally 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. Expedite Criteria Some circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization. For example, an application to change status from H-1B to L-2 may be eligible for expedited adjudication to prevent severe financial loss. Departure from the United States Workers may choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner. Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States If you have questions about any of these options, please schedule a consultation today with one of our immigration attorneys at this link. Click here to view the USCIS informational page. Source

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