Archive for the ‘FAQ H-1B’ Category
I’ve been laid off from my H-1B job: do I have a grace period?
The short answer is, no. While an H-1B employee has 10 days to leave the U.S. after the expiration of H-1B status, the“10 Day Rule” is only triggered upon expiration of H-1B status and not upon terminations prior to the H-1B expiration date. If you are terminated from your H-1B position, your options are to:
Depart the United States within a reasonable period (the regulations don’t specify what is “reasonable” under the circumstances);
Change your status to another nonimmigrant category (such as B, F-1, H4, etc.) before the last date of employment;
File a change of employer petition and request for extension of stay before the last day of employment along with pay stubs showing that you’ve been maintaining status. If your change of employer petition is filed after the date of termination, you will not be eligible for an extension of stay. In that case, you may file a change of employer petition, and then upon approval of that petition, you will need to depart the U.S., apply for a new H-1B visa at a U.S. consulate abroad and then re-enter the U.S. You will not be subject to the H-1B numerical cap in either situation.
Some general advice: work with your employer to see if the employer is willing to restructure the date of termination so as to allow you to remain in H-1B status for a longer period of time. Please note that what determines whether or not you are out of status is the actual date of termination, not whether you are receiving severance payments from the employer. Continuing to receive compensation from your employer will not maintain your status if the date of termination has already occurred. Lastly, consult with an immigration attorney. Falling out of status can have far-reaching implications for your future in the U.S. Make sure that you have all of the information you need to make the best decisions possible.
Tags: change of employer, extension of stay, H-1B, H1b, layoff, termination
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I Have My Green Card. Now Can I Leave the U.S.?
A green card holder can generally leave the U.S. anytime for temporary and finite absences abroad without jeopardizing their permanent residency status. If a green card holder is out of the U.S. for more than one year, Immigration takes the position that residency has been abandoned. In certain cases, even absences of less than one year can result in abandonment of permanent resident status if a person lives and works abroad, files taxes as a nonresident, or otherwise demonstrates an intention to abandon residency. DHS will look at such factors as family and employment ties in the U.S., income tax returns, memberships in clubs or religious organizations, as well as existence of a mortgage or residential lease to determine whether permanent residency in the U.S. has been abandoned. If you are planning to spend a prolonged period of time outside the U.S. and wish to maintain your green card status, it may be prudent, depending on the circumstances, to obtain a re-entry permit, which will allow you to be absent from the U.S. for as long as two years.
This is the first in a series of FAQ postings. There are many questions that come up frequently in our practice, and I intend to answer them on this blog. Stay tuned for more answers to Immigration FAQ’s.
Tags: abandonment of permanent residency, FAQ, green card, immigration, income taxes, nonresident, re-entry permit
Posted in FAQ H-1B, H-1B | Read More »
