So you’ve been laid off or have been benched without pay, and you’re concerned about your H-1B work status. Perhaps you’ve been without employment for months, and finally found an interested employer who told you that they would hire you, but their attorney told them that you were not fine to transfer because you don’t have pay stubs to prove that you were maintaining status. People have told you the standard advice that “there is no grace period” in H-1B once you lose your job, and that you are therefore now unlawfully present in the US.
The truth of the matter is, even when you’ve been laid off or benched, you might not necessarily have to leave the country, especially if your termination was due to your employer’s unscrupulous conduct. Factors that weigh into the analysis as to whether you may port your H-1B to an new employer in the US include: 1) whether you have an unexpired H-1B visa in your passport, 2) whether your employer failed to pay you for your work, 3) whether your employer threatened you in any way, and 4) how long you’ve been without pay.
The following flowchart relating to applying for a change of H-1B employer gives an idea of how these factors come into play:
Great care must be exercised in deciding how to proceed if you’ve been laid off while in H-1B status, because consequences of being an overstayer can be disastrous. For example, if an individual is an overstayer for 180 days or more, a 3-year inadmissibility bar is triggered. So although this article provides some optimism, in certain cases, it really is a good idea to leave the country immediately. A discussion of the best course of action with a knowledgeable immigration attorney is of great importance.
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