Options for H-1B Workers after Employment Termination

With recent layoffs in the tech industry, H-1B and other nonimmigrant workers may find themselves stranded in the US with no work and potentially no legal immigration status.  USCIS has issued detailed information for these workers, explaining their options and some relief that may be available in certain circumstanes:

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 (e.g., an H-1B change of employer petition for a worker in H-1B status).

Portability:  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.

Change of Status and/or Employer: Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants.

There are other options available as well, depending upon individual circumstances. It is highly advisable for anyone who finds themself terminated from the employment that is underlying their nonimmigrant visa status to contact immigration counsel to review all of the legal options, and  immigration consequences of the termination.

Good USCIS News: Policy Pronouncements Recognize Real-Life Customer Service Issues and try to Fix Them

New polices going into effect today will address application processing delays and their negative impacts on applicants, including loss of work authorization due to USCIS processing delays; delayed foreign national start dates due to USCIS adjudication delays and RFEs; and giving more applicants more opportunities to request that their applications be expedited.

Work Permit Validity Extended: from 1 year to 2 years for Adjustment of Status Applicants (Category C-09). This will greatly reduce the inconvenience or applying for new permits and job loss due to expiring permits; Continue reading “Good USCIS News: Policy Pronouncements Recognize Real-Life Customer Service Issues and try to Fix Them”

Hiring and Immigration: Questions to Ask and Factors to Consider

Hiring season is fraught with questions and uncertainties; preparing employment applications;  interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship.  Those tasked with the hiring process often ask,  whether it is legal to ask applicants about their immigration status, how to ask that question,  and even more important,  “Do we have to sponsor for immigration status if the applicant needs it?”

Read the full post here: 

H-1B Lottery Selection Criteria May Change to Salary-Based Process

The Department of Homeland Security (DHS) has issued a new rule that transforms the  random cap H-1B selection process to one that prioritizes registrations and petitions based on the highest Department of Labor (DOL) prevailing wage level met by the offered salary. It is not clear yet whether the incoming Biden administration will implement this rule at all or with modifications. Learn more in our recent client alert.

Proposed Student Visa Rules end Duration of Status, Require Extension Applications


On September 25, Immigration and Customs Enforcement (ICE), the DHS agency with jurisdiction over F-1 foreign student visa holders, published new proposed regulations that would end the long time U.S. practice of issuing “Duration of Status”  to F-1 students. Instead, F-1 visa holders would be limited to 2 or 4 year visa terms depending upon their country of origin, and be required to reapply for F-1 Status through USCIS to obtain extensions, or to leave the United States and apply for an extension .  The proposed regulations were immediately criticized by the higher education community. The rules were called ill-conceived, misguided, unnecessary, and a burden to an industry that has already seen a steady decline in international student admissions. Read the full blog post here.

Universities Weigh Impact of Latest Travel Ban on Certain Chinese Graduate Students and Post Docs

The White House has issued a new travel ban blocking Chinese nationals associated with entities that are part of China’s “military-civil fusion” strategy from obtaining graduate level Student (F) or Exchange Visitor (J) visas. The ban went into effect on June 1 and has no end date.  The ban specifically references those visa applicants who are currently outside the United States, but does not exclude the possibility that the estimated 3000 Chinese nationals, already studying in the U.S. who meet the criteria of the executive order, could have their existing visas revoked.  Read Valentine’s full post on the Duane Morris Education Law Blog, UpdateED.

COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update

The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency.  Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.

Continue reading “COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update”

Australia Announces Unprecedented Travel Ban for Citizens and Permanent Residents in the wake of Covid-19

The Australian government has announced on March 25, 2020 that a travel ban has been introduced   which will prevent Australian citizens and permanent residents from departing Australia, except in exceptional circumstances. This is in addition to the recently announced entry bans applicable to any non-Australian citizens or permanent residents who have not been granted prior permission to enter Australia on exceptional circumstance grounds. Continue reading “Australia Announces Unprecedented Travel Ban for Citizens and Permanent Residents in the wake of Covid-19”

USCIS Suspends Premium Processing for all I-129s and I-140s

USCIS announced at 2:19 PM on 3/20/2020 that Premium Processing services for I-129 (E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.) and I-140 (EB-1, EB-2 and EB-3) is suspended temporarily.  Like many of us, USCIS service center operations have gone remote, so it is impossible for the agency to keep up with the demand for premium processing of applications. Continue reading “USCIS Suspends Premium Processing for all I-129s and I-140s”

Obama Eases Travel and Trade Restrictions with Cuba

The Obama administration announced wide-ranging changes to loosen travel, commerce and investment restrictions on Cuba. The new rules allow American companies to open locations and hire workers in Cuba. U.S. companies will be allowed to establish subsidiaries or joint ventures as well as open offices, stores and warehouses in Cuba. Additionally, the new rules will expand telecommunications services, facilitate financial transactions between the two countries, remove limits on the amount of money that can be brought to Cuba, and allow “certain persons” to open and maintain bank accounts in Cuba.  Read more about the Details of the Changes in this Blog Post by Jose Aquino, Esq.  of the Duane Morris Cuba Practice Group.

Most travel restrictions for US citizens remain in place, but according to the announcement, additional close relatives will be allowed to visit or accompany authorized travelers for certain additional activities. Information about visa requirements and travel restrictions may be found here.

Check back often for updates on this rapidly evolving situation.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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