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Dinsmore | Immigration
Dinsmore immigration attorneys leverage more than 130 years of cumulative experience to craft strategies and solutions to meet unique immigration needs. We anticipate the areas where the U.S. government may challenge a case, reverse engineer the case to lower the risk of denial, and increase the odds of approval. 

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Immigration Status And Employment Termination

Employee's U.S. Immigration Status/Situation US Gov't Notification of Termination Required? Payment of Return Transportation Cost Required? Employee Allowed Grace Period to Remain in US? Can Employee Use Visa Status "Portability"? Comment
F-1 Student No No F-1 may remain in U.S. for period of Employment Authorization Card validity +60 days No (not applicable)  
H-1B Worker Yes. An employer must notify the CIS immediately of changes in the terms and conditions of employment of an H-1B employee. Exactly when an employer must notify the CIS turns on when the terms and conditions of employment change. For instance, if an H-1B employee is offered notice in lieu of severance and remains an employee during the period leading up to the agreed employment termination date, then arguably the terms and conditions of employment do not change until the agreed termination date passes. Yes. H-1B employer is required to pay reasonable cost of return transportation of the H-1B worker to his/her country of residence abroad. (This obligation does not extend to goods and personal effects and does not include family members). No. H-1B category does not afford a grace period after employment ends during which H-1B worker may make arrangements to depart. Lawful status ends when employment relationship ends, absent the timely filing for a different U.S. Visa status or the filing of a new H-1B Petition by a new employer. Yes. Must (1) have been legally admitted to the U.S., (2) have been previously granted H-1B status or H-1B Visa; (3) not have worked illegally, and (4) not have remained in U.S. beyond authorized period of stay. May begin work for new employer as soon as new H-1B Petition is filed with CIS.  
J-1 Exchange Visitor No No J-1 may remain in the U.S. for period of Employment Authorization Validity +30 days No (not applicable)  
L-1 Intracompany Transfer No No No. (Same as H-1B above.) No (not applicable)  
O-1 Extraordinary Ability Yes. (Essentially same as H-1B above.) No No. (Same as H-1B above.) No (not applicable)  
TN Professionals No No No. (Same as H-1B above.) No (not applicable)  
Labor Certification Pending No No No (not applicable) No (not applicable)  
Labor Certification Approved No No No (not applicable) No (not applicable)  
>I-140 Immigrant Petition Filed No No No (not applicable) No (not applicable)  
I-140 Immigrant Petition Approved No No No (not applicable) No (not applicable) The approval of an I-140 locks in the "priority date" or place in the visa queue. However, because for almost all employment based permanent resident cases there is no queue, this benefit is of not current value. An approved I-140 Petition is not "portable" and offers no benefits to a new employer.
I-485 Adjustment Filed No No No formal grace period but the law does not cause the employee to fall out of status when the employment terminates. No Termination of the employee's employment with the "sponsoring" or "petitioning" employer before the I-485 has been pending with the CIS for at least 180 days could cause the I-485 application to become not approvable. However, the CIS has not ruled on this issue, so it remains an unresolved topic.
I-485 Adjustment Pending <180 Days No No Same as above No Same as comment immediately above.
I-485 Adjustment Pending >180 Days No No Same as above. Yes. Must continue to work in the same occupational classification as described in the underlying Immigrant Petition for the I-485 to survive.  
Consular Processing Application pending No No No No (not applicable)  
"Portability" refers to the notion that one may pick up and carry something from one place to another. In the H-1B context, Portability means a foreign national may be able to take his/her ability to be employed to a new employer, provided certain conditions are met. In the I-485 Adjustment context, a foreign national whose I-485 Application has been pending with the CIS for 180 days may continue with his/her Adjustment Application even if he/she leaves employment (or employment is terminated) with the sponsoring employer.

For more information about the impact of employment termination or layoff on immigration status and applications, please click here.

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