Vermont Service Center Guidance on Termination of H-1 Status

The Vermont Service Center (VSC), through the AILA Liaison, has provided some guidance and a refresher on when the H-1B status of an employee terminates in connection with termination of employment or revocation of the H-1B petition by the employer.  The timing of the termination of the H-1B status is very important, because under USCIS regulations, an application to change or extend status (which includes transfer of H-1B to a different employer, or “porting”) may be filed only if the employee has been in lawful status at the time the application is filed.

New Filing Must Occur Before Termination

VSC has confirmed that if the employee ports to a new employer (or files a different application to change or extend status) prior to the revocation of the H-1B petition filed by his or her former employer or prior to the termination of employment, then the employee will be in an “authorized period of stay” while the newly filed petition is pending (under INA 214(n)).

No Grace Period

As a result of this guidance and interpretation of the relevant USCIS laws and regulations, it is important to understand the implications of timing of filing of an H-1B transfer application.  Currently, the laws and regulations do not provide any grace period from the time the employee ceases employment until the time a new petition is filed on his or her behalf.  However, USCIS has indicated that it may, in its discretion, excuse a late filed petition when extraordinary circumstances exist pursuant to 8 C.F.R. 214.1(c)(4) which reads:

(4) Timely filing and maintenance of status. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

As a result, H-1B employees who are terminated or have had their H-1B revoked must act immediately to secure a different H-1B sponsor who would file an H-1B transfer application or to switch to a different nonimmigrant status in order to be able to ask for USCIS’ discretion in approving such application.