A very common misconception about the H-1B visa is that H-1B workers are granted a grace period in the event that they are laid off, terminated, or fired from their jobs. Some people think there is a grace period of ten days; others, thirty, and some others, sixty. This often arises in the context of an individual who has just been laid off by his/her employer. In order not to become "illegal," the terminated individual will try to switch to a different employer or different status, whether as a student, H-4 dependent family member, or even as a B-2 tourist. Unfortunately, while under some circumstances, a change of status may be granted by USCIS, the regulations generally prohibit a change of status within the United States once a foreign national has violated or fallen out of status. Therefore, once an H-1B is fired or laid off, the probability of switching to a different status without having to leave the United States is generally very slim. This is why, for example, when an H-1B tries to switch from H-1B to H-4 status (on the basis of a spouse holding H-1B status), USCIS will not only request proof that the spouse is currently working as an H-1B, but as equally important, proof that the applicant was maintaining his/her H1B status prior to the application to change status. If the applicant cannot demonstrate that he/she was in lawful H1B status (in other words, working according to the terms of the H-1B), a change of status will likely not be granted because a non-immigrant cannot normally switch to or extend a non-immigrant status if he or she has already fallen out of status. This is not to say that it is impossible to switch status but it will be very difficult. USCIS does provide, however: "In deciding whether to approve a change or extension of status for any nonimmigrant who has fallen out of status, however, USCIS may exercise discretion on a case-by-case basis to grant the extension or change of status despite the failure to maintain status."
Options for those who about to be laid off or fired
This situation is slightly different from a scenario where an H1B learns that he/she will be laid off. If the person is still currently working and has not yet been laid off or fired, there may be more leeway for the individual to file a change of status, since he/she has not yet technically fallen out of status. If a change of status is not viable, the individual should also explore the possibility of leaving the US and re-entering on the desired visa. In any case, however, since the consequences of falling out of status can be devastating-ie., being subject to removal proceedings or triggering the ten year bar upon departure-it is highly recommended that an individual consult with an attorney who can research and explore the options.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.