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The Impact of Employment Termination Or Layoff On Immigration Status And Applications

Basic Concepts

Nonimmigrant status that is petition-based, such as H-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN, are not considered terminated when the employment associated with that status ends for up to 60 days or until the end of the authorized validity period, whichever is shorter. When the principal nonimmigrant's status ends Dependent's family members who hold Derivative Visa Status will not lost their status or up to 60 days or until the end of the authorized validity period, whichever is shorter.

During the grace period a nonimmigrant is considered in "valid status" beginning upon the termination of the approved employment relationship for up to 60 days or until the end of the authorized validity period. This grace period prevents a non-immigrant from being considered “out of status,” allowing the non-immigrant to find new employment, apply for a change of visa status or leave the country without violating their status. Additionally, during this grace period, the non-immigrant does not have employment authorization.

Please click here for a chart comparing the impact of employment termination on various immigration statuses.

H-1B Specific Issues


Portability applies only to foreign nationals who have been granted H-1B status or have been issued an H-1B Visa. Portability allows such a person who is present in the U.S., to begin work for a new employer as soon as the new employer files an H-1B petition with the Citizenship and Immigration Service ("CIS"). Maintaining lawful H-1B status is not required for portability. However, if the new employer's H-1B petition asks the CIS to extend the period of time for which the H-1B nonimmigrant may remain in the U.S., the CIS may deny the extension of said request if the nonimmigrant was not maintaining lawful status on the day the new employer filed its H-1B petition. If the CIS were to approve the new employer's H-1B petition, but deny the requested extension of the nonimmigrant's stay, the nonimmigrant would be required to depart the U.S. and apply for either an H-1B visa or readmission to the U.S., or both, in order to resume lawful H-1B status in the U.S. Please see Portability FAQs for more information. For additional information, please see, Q10, Q11 or Q12.

Maintenance of Status

The CIS has said that an H-1B nonimmigrant who is present in the U.S. during a severance period for up to 60 days or before the end of the authorization validity period, whichever is shorter, is considered in valid status. In an H-1B case where a new employer requests an extension of the nonimmigrant's H-1B status, DHS will determine whether facts and circumstances may warrant shortening or refusing the 60-day grace period on a case-by-case basis. Considering the totality of the circumstances, if there is credible evidence that supports the authorization of the grace period, DHS will determine the nonimmigrant has maintained valid status during the grace period following the termination of employment.

Impact on Green Card Application

Most employment-based applications for Permanent Resident (Green Card) Status are employer-sponsored. By employer sponsored, we mean that the foreign national's Green Card case is the result of efforts initiated by the employer - not by the foreign national on his or her own behalf. The majority of Green Card cases involve three stages:

  1. labor certification;
  2. immigrant petition; and
  3. either Adjustment of Status or Consular Processing. (Some cases involve only stages 2 and 3)

If a nonimmigrant's employment ends before the nonimmigrant is granted Permanent Resident Status as a practical matter, the Green Card case ends without the nonimmigrant's being able to obtain resident status. Only if a foreign national is at the third stage and has an unadjudicated adjustment of status application pending with the CIS for 180 days or more may the foreign national change jobs or employers. However, the new job must be in the same or similar occupational classification as the one for which the immigrant petition was filed. See Section 106(c) of the American Competitiveness in the Twenty First Century Act which is reproduced at Essentially, the only employer-sponsored (Green Card) cases that, as a practical matter, may continue despite employment termination are those where the foreign national has had an unadjudicated I-485 Adjustment of Status Application pending with the CIS for 180 days or more.


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