Being granted permission to work in the United States represents the start of an exciting new chapter. But in most cases, this permission is not only temporary, it’s also conditional on you keeping your job. This means that in the event a visa-holder loses their job, the immigration implications can be potentially life-changing.

In this guide, we explain the impact of the loss of employment on a visa worker’s immigration status, including the 60-day grace period, whether you can transfer to a new employer under your visa, and the circumstances when you will have to leave the US.

 

What happens to your visa if you lose your US job?

 

If you are currently working in the United States under a nonimmigrant work visa, the validity of that visa will usually be dependent on you remaining employed by the same employer and continuing to work in the same role for which permission was granted.

If your employment is terminated — regardless of whether you are laid off, dismissed, made redundant or resign — this is most likely to impact the validity of your visa which, in turn, will affect your permission to remain in the US. As such, you may need to consider alternative visa options as a matter of urgency or you may have to leave the US.

Guidance as to the various options for nonimmigrant workers following termination of employment, either on a voluntary or involuntary basis, has recently been published on the US Citizenship and Immigration Services (USCIS) website. However, by seeking expert advice from an immigration attorney, this is likely to maximise your chances of overcoming this hurdle and ensuring continuation of lawful nonimmigrant status as soon as possible.

 

How long will your visa last if you lose your job?

 

Under 8 CFR 214.1(l)(2), nonimmigrant workers in classifications such as E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN (and their dependents) may be considered as maintaining status for up to 60 consecutive calendar days following the end of employment, or until the end of their authorized validity period, whichever is shorter. This grace period is discretionary and not automatically granted; USCIS will determine its applicability during the adjudication of a subsequent petition or application.

During this grace period, you are not authorized to work unless otherwise permitted under 8 CFR 274a.12. However, you may use this time to file a change of status, extension of stay, or a compelling circumstances employment authorization application, if eligible.

Put simply, you will be able to maintain your nonimmigrant status if a new employer files a petition on time and on your behalf with an extension of stay request. Alternatively, you may be able to stay if you file an application to change to a new nonimmigrant status. In some cases, you may even be eligible to apply for a green card, provided you meet the eligibility criteria.

 

Can you stay on the same visa if you lose your job?

 

If you lose your job and you are in the United States under a nonimmigrant work visa, that visa will soon expire, as detailed above. However, you may be able to maintain the same nonimmigrant status, provided a new employer files a petition on your behalf with an extension of stay request. This is known as portability to a new employer. Under USCIS rules, H-1B workers may begin working for a new employer once a non-frivolous H-1B petition has been properly filed with USCIS, or as of the petition’s requested start date, whichever is later. However, you must not have worked without authorisation since your last lawful admission to the United States, and the petition must be filed before your current period of authorised stay expires.

This means that if you are able to secure a new job offer in a speciality occupation, you can commence work in that role once the employer files a Form I-129 petition on your behalf, or as of the specified start date on that petition, whichever is the later. However, to be eligible for portability, you must not have been employed in the US without authorization from the time of your last admission, and the new employer must properly file a new and non-frivolous petition prior to expiry of your initial H1B period of authorized stay. As such, if you are laid off, fired, quit or otherwise cease to work for your previous employer, you will only usually have up to 60 days or until expiry of your authorized validity period, whichever is the shorter, to find new employment as an H1B nonimmigrant worker.

However, having found a new job, provided you are still eligible for H1B portability, your new employment will be authorized until USCIS has made a decision on Form I-129. If the new I-129 petition is approved by USCIS, you can continue working for your new employer for the length of time indicated on the petition approval. If, on the other hand, the new petition is denied, your authorization to work based on portability will cease at that stage.

It is worth noting that if you are moving from H1B cap-exempt to cap-subject employment, your new employer’s H1B petition will be subject to the annual numerical limitation on the petitions to be adjudicated by USCIS. If subject to the yearly cap, your new employer must first submit an electronic registration, typically in early March, where registrations are then selected by a random lottery process. Only where your registration is selected can the new employer file a petition on your behalf with a start date of no earlier than 1 October, where you can only begin working under the new cap-subject petition after a Form I-129 petition has been properly filed or as of the specified start date on that petition, if later.

 

Can you transfer to a different visa if you lose your job?

 

In addition to the H1B portability provisions, you may also be able to use your 60-day discretionary grace period to seek new employer-sponsored nonimmigrant status under a different classification. For example, if you are currently an L1 worker, depending on your nationality, you may be eligible for new employment under the TN, E3 or H1B1 classifications, where the timely filing of an application to change status will prevent the accrual of unlawful presence until that application is decided. However, such a filing alone will not confer employment authorization in the new position while the application is pending, and will not extend employment authorization if the original classification is no longer valid, although some petitions may be eligible for premium processing for a fee.

Alternatively, you could use the grace period to apply to change your nonimmigrant status to become the dependent of a spouse, where applicable. For example, you may be able to change to either H4 or L2 classification as the spouse of an H1B or L1 worker respectively. As the spouse of an L1 nonimmigrant, you will be eligible for employment authorization incident to status. You can also apply for employment authorization as the spouse of an H1B worker, provided your husband or wife has an approved Form I-140 immigrant petition and certain other requirements are met. Equally, you may be authorized to work if you apply for derivative status as the spouse of an E1 treaty trader or an E2 treaty investor.

If these suggestions are not open to you, there are several other available visa options for remaining in a period of authorized stay following termination of your employment, although not all of these options will provide you with employment authorization. For example, you may be able to stay in the US if you file an application to change to a B1 or B2 visitor visa prior to expiry of the 60-day grace period, although B1 and B2 nonimmigrant visitors are precluded from performing skilled or unskilled labour in the United States. Another possible nonimmigrant option includes F1 status as a full-time student, where certain F1 students may engage in limited employment around their studies.

If you are the beneficiary of an approved Form I-140 but do not yet have an available immigrant visa number, you may be eligible to apply for an Employment Authorization Document based on compelling circumstances. This EAD, valid for up to one year, is available to certain high-skilled nonimmigrant workers facing serious disruption to their status or stability — such as sudden job loss — and meeting strict eligibility criteria set out by USCIS.

However, in all scenarios, the timely filing of an application to change status will stop you from being in the US on an unlawful basis until the application is adjudicated. For example, if you file an application to change status before the end of your 60-day grace period, you will not accrue unlawful presence while that application remains pending, even after the grace period has elapsed. If the application is ultimately approved, your status will be changed and you will be considered to have been in a period of authorized presence the entire time that your application was pending. If, on the other hand, your application is denied, then you will start to accrue unlawful presence the day after the denial decision.

 

Can you still get a green card if you lose your job?

 

If you are a nonimmigrant worker who has just lost their job, but have already filed Form I-485 (Application to Adjust Status), with an underlying valid immigrant visa petition using Form I-140 (Immigrant Petition for Alien Worker) — and your Form I-485 has been pending for at least 180 days — you can transfer the valid petition to a new offer of employment within the same or similar occupational classification with a new employer. This is because section 204(j) of the Immigration and Nationality Act (INA) allows applicants experiencing delays in the employment-based adjustment of status process some flexibility to change employer. Referred to as ‘porting’, the INA 204(j) provision will allow you to complete your application for a green card, provided you can secure a qualifying new job offer.

Even if your original employer withdraws the approved I-140 petition or goes out of business, USCIS will generally not revoke the petition if it has been approved for at least 180 days, unless there is evidence of fraud, material misrepresentation, or the labour certification is later invalidated. This means you may still retain your priority date and proceed with a new job offer in the same or similar occupational classification under section 204(j) of the INA.

Further, an applicant who successfully ports their petition on which the adjustment application is based to a new job role will retain the priority date of the underlying petition.

Alternatively, if you have not yet petitioned for an immigrant visa, commonly referred to as a green card, you may even be eligible to concurrently file a self-petitioned immigrant visa petition with an adjustment of status application. Examples of immigrant classifications eligible for self-petitioning include EB1A Extraordinary Ability, EB2 National Interest Waiver or EB5 Immigrant Investors. Importantly, workers with a pending adjustment application are generally eligible to remain in the US and obtain an Employment Authorization Document (EAD) to enable them to work in the interim.

 

What will happen if you lose your job and decide to return home?

 

If you lose your job and all options for nonimmigrant workers following termination of employment have been exhausted or, alternatively, you simply decide it is time to go home, you can choose to depart the US. If you are in H-1B or O status and are involuntarily terminated before the end of your authorized stay, your employer is responsible for the reasonable costs of your return transportation to your last place of foreign residence. This obligation does not apply if you voluntarily resign.

Once you are overseas again, as an H1B visa-holder, you may seek employment in the United States and readmission for any remaining period of your H1B status. If you are instead seeking another visa classification for which you may be eligible, you can also complete the application or petition process outside the US before seeking readmission.

However, it is important to remember that if you have exhausted all visa options and you are unable to file a change of status application while in the United States prior to expiry of your authorized period of stay, or find a new employer who is able to timely file a change of employer petition on your behalf, you may be required to leave the country at the end of the 60-day grace period. By overstaying, you are at serious risk of being deported from the country. You may also be barred from returning to the US in the future.

 

Need assistance?

 

NNU Immigration are specialist US immigration attorneys. If you’re looking to make an application to retain your lawful immigration status, speak to our experts.

 

Lost Your Job on a US Work Visa? FAQs

 

What happens to my visa if I lose my job in the US?

In most cases, your visa status is tied to your employment. If your employment ends, you may lose your lawful nonimmigrant status unless you take timely steps to switch visa category, extend your stay, or leave the United States.

 

How long can I stay in the US after losing my job?

Many work visa holders, such as those in H-1B, L-1, O-1 or TN status, may benefit from a 60-day discretionary grace period following termination of employment. This allows time to apply for a new status or leave the country without accruing unlawful presence.

 

Can I start working for another employer straight away?

In some cases, yes. If you are in H-1B status and eligible for portability, you may begin working for a new employer as soon as they properly file a new petition with USCIS. You must not have been working without authorisation and the petition must be filed within your authorised stay.

 

What if I want to switch to a different type of visa?

You may apply to change to another visa classification, such as becoming a dependent of a spouse on H-4 or L-2 status, or to a visitor (B-2) or student (F-1) visa, provided you qualify. You must file this application before your grace period expires.

 

Can I still get a green card if I’ve lost my job?

Possibly. If you’ve filed Form I-485 and your I-140 was approved at least 180 days ago, you may be able to port your green card application to a new employer offering a job in the same or similar role. You may also be eligible to self-petition in some visa categories.

 

Is there any way I can keep working if I don’t have a new job yet?

If you are the beneficiary of an approved I-140 but do not yet have a green card, you may qualify for a compelling circumstances Employment Authorisation Document (EAD) valid for up to one year, if you meet strict criteria.

 

Do I have to pay for my own travel if I’m laid off?

If you are in H-1B or O-1 status and you are dismissed involuntarily, your employer is required to cover the reasonable cost of return transport to your last place of foreign residence. This does not apply if you resign voluntarily.

 

What happens if I overstay after my visa expires?

Overstaying can lead to removal proceedings and possible re-entry bans. To avoid this, you must either leave the US or apply to change status before your current authorised stay expires or your grace period runs out.

 

Glossary

 

Term	Definition
Nonimmigrant Visa	A visa issued to individuals entering the United States temporarily for a specific purpose, such as employment, study or tourism.
Grace Period	A discretionary period of up to 60 days during which certain visa holders can remain in the US following termination of employment, without being considered in breach of status.
H-1B Visa	A nonimmigrant visa that allows US employers to temporarily employ foreign workers in speciality occupations.
Portability	The ability of an H-1B visa holder to begin working for a new employer upon the proper filing of a new petition, without waiting for USCIS approval.
Form I-129	The form used by employers to petition for nonimmigrant workers to come to the United States temporarily.
Form I-140	An immigrant petition for alien workers, typically filed by a US employer to sponsor a foreign national for a green card.
Form I-485	An application to adjust status to that of a lawful permanent resident (green card holder) from within the United States.
INA 204(j)	A section of the Immigration and Nationality Act that allows workers with a pending I-485 application to change employers if certain conditions are met.
Compelling Circumstances EAD	An Employment Authorisation Document that may be granted to certain workers with an approved I-140 facing serious disruption to their immigration status, valid for up to one year.
Change of Status	The process of switching from one nonimmigrant visa category to another while remaining inside the United States.
Unlawful Presence	Time spent in the US without legal status. Accruing unlawful presence can lead to bars on re-entry for several years.
Employment Authorisation Document (EAD)	A document issued by USCIS allowing certain non-citizens to work lawfully in the United States.
Premium Processing	An optional USCIS service that expedites the processing of certain petitions for an additional fee.
USCIS	United States Citizenship and Immigration Services — the agency responsible for administering immigration and naturalisation processes.