How Terminated H-1B Visa Holders Can Continue Working in the USA

Per information published by US Citizenship and Immigration Services (USCIS) on December 19, there are additional options for nonimmigrant workers facing termination of employment. The most pertinent information for terminated H-1B and other nonimmigrant visa holders is that they may be eligible for a Compelling Circumstances Employment Authorization Document (EAD) for up to one year if they are the beneficiary of an approved Form I-140, employment-based immigrant visa petition. This can allow them to remain in the USA and work or seek employment for the duration of the EAD.

This EAD allows nonimmigrant visa holders (H-1B, H-1B1, L-1, O-1, and E-3) facing termination greater flexibility to continue working for up to one year within the United States as part of their path to lawful permanent residence, rather than being required to abruptly leave the country after the standard 60-day grace period, or change their status to F-1, B-1, B-2, etc., thus severely limiting their employment options.

Compelling Circumstances EAD Eligibility

In order to be eligible for a Compelling Circumstances EAD, the individual must not have an immigrant visa available to them per the US Department of State’s Visa Bulletin, and they must face compelling circumstances as defined by USCIS.

It is important to note that the Compelling Circumstances EAD is just a stopgap measure. Workers on the Compelling Circumstances EAD will no longer be maintaining nonimmigrant status, but will rather be considered to be in a period of authorized stay, and will not accrue unlawful presence in the USA so long as the EAD is valid. Those who would like to find out more about eligibility requirements and application steps for a Compelling Circumstances EAD can see the relevant USCIS webpage.

For Those Departing the United States

Understandably, a Compelling Circumstances EAD may not be a viable option for all nonimmigrant visa holders facing termination of employment, and leaving the USA may be necessary. However, those in H-1B or O status who face involuntary termination of employment are entitled to reasonable costs of transportation back to the worker’s last place of foreign residence. These costs are to be borne by the H-1B employer or O employer and O petitioner, as applicable.

Once outside the United States, H-1B visa holders are entitled to continue seeking reemployment and readmission to the US for the remainder of their H-1B status, or seek reclassification and readmission to the US while abroad through the appropriate application and petition process.

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