Getting an H-1B visa is no small feat. Between finding an employer to sponsor you, being selected in the cap, and waiting until October 1st to start working, the H-1B is a visa that is more involved than most other nonimmigrant options. For this reason, having your H-1B revoked can be devastating. Even though it’s not a denial or rejection, a revocation can be just as difficult to overcome, if not more difficult.
An H-1B revocation happens because your employer chooses or is forced to withdraw your H-1B petition. This can either happen before you receive your H-1B or while you are already on H-1B status. Usually, an employer either chooses to abandon the immigration process before its fruition and withdraws the petition or the employer goes out of business and must therefore withdraw. Also, if you are fired or laid off, your petition will be withdrawn. Because this can have serious consequences, including being considered H-1B out of status, it is important to be well versed in how getting an H-1B revoked works.
H-1B Revoked: What You Need to Know
When an employer decides to withdraw an H-1B petition (whether out of necessity or because of a layoff), they must submit a request for a withdrawal, which requires filing several documents. When the USCIS obtains these documents, the processing of revoking the H-1B will begin. However, like many processes with the USCIS, this may take upwards of several months, so you may want to begin looking for a new H-1B employer if you are aware of the intention to revoke your visa.
Federal Register Final Rule
On January 17, 2017, the Department of Homeland Security’s Federal Register implemented a new final rule that, among many other things, affects the impact of H-1B revocations on employees.
The first and main change that has been made to H-1B revocation policy is that a 60-day grace period has been granted to all H-1B holders that suddenly find themselves without employment. This grace period extends from the day that you cease working for your sponsoring employer and is only granted once during each visa validation period.
In the past, once your employment ended, you would be considered out of status and would be expected to leave the country immediately. The Department of Homeland Security (DHS) has realized that many foreign professionals are incapable of leaving on such short notice if their employment is terminated unexpectedly.
This means that, if your employer ends your employment or you have your H-1B visa revoked, you will have about two full months to find a different sponsoring employer, change your status, have your I-140 petition filed, or leave the country. During this time, you will not be considered “out of status”, which is a condition that can be seriously detrimental to any future attempts to enter the U.S. in the future.
H-1B Revoked FAQ
Here are some commonly asked questions that we often get regarding getting an H-1B revoked:
How long can you stay in the U.S. if your visa is revoked or you’re laid off?
While there is no law that dictates the amount of time an H-1B worker can remain in the country after a revocation or a layoff it is necessary to seek alternate employment/change of visa status as soon as possible.
Under normal circumstances, an H-1B holder would have a 10-day grace period. However, this grace period only applies after the visa validation period is over. If you have gotten your H-1B revoked or gotten a layoff before the end of that validation period, then this 10-day grace period does not apply.
Fortunately, the Federal Register’s final rule has provided a 60-day grace period for H-1B employees who have had their visas revoked or have experienced a layoff. You will have until the end of that period to rectify your situation. If you are not maintaining a valid U.S. visa by the end of those 60 days, then you will be considered “out of status”.
Work with your immigration attorney immediately after an H-1B layoff or revocation to determine the best action for your situation.
If I have H-1B status but I also have Employment Authorization Documents for my green card, should I maintain my H-1B status?
Many people work in the U.S. solely on the permission of the EAD. However, if your I-140 has not yet been approved, you run the risk of losing your ability to work in the U.S. if your petition is not approved. Maintaining your H-1B status is a good way to keep your job secure while your immigrant petition is pending.
Can you apply for a different status after being laid off?
Absolutely. Better yet, if your spouse is currently on an L-1 visa or H-1B status then you can first change your status to a dependent status like H-4 or L-2 until you find a new employment situation. With the help of an immigration lawyer, this can be a relatively simple and affordable solution that can give you the time you need to reevaluate your immigration case.
The advantage of changing to L-2 is that it permits you to request authorization for employment. In the event you want to return to your home country then it may be beneficial to apply for a B-2 or tourist visa until all your tasks are completed in the U.S.
Can a revoked H-1B be reinstated?
If your H-1B is successfully revoked by the USCIS, then you no longer have an approved and valid I-129 on record for that employer. In order for your H-1B status to be reinstated through that employer (if, for example, the revocation was a mistake or the business received funding and will not go out of business as previously thought), then the employer will have to refile for you, essentially starting from square one.
This means that your employer will have to wait until the next filing season at the beginning of April the next year. Additionally, you will have to wait until October 1st of that next year before you can begin to work as an H-1B employee. Of course, if your employer is cap-exempt, you can file and work at any time.
If I change my status to H-4, can I revert back to H-1B?
Let’s say you change your status to L-2, F-1, or H-4 and in the meantime acquire a new H-1B sponsoring employer. It is entirely possible to change back to H-1B. Fortunately, when your new employer files your petition, you will not be entered into the cap unless your previous employer was cap exempt and your new employer is cap-subject.
If this is your intention, it’s recommended to meet with an immigration lawyer to devise the best strategy for applying.
Can I look for another employer while an H-1B petition is in the process of being revoked?
When it comes to having your H-1B revoked or experiencing a layoff, your H-1B status ends when your employment is terminated, not when the visa is revoked. That means that your 60-day grace period is activated when you stop working for your employer.
Another option available to you is to request an extension of status, in which case the USCIS will request current pay stubs and other proof of continuing status.
Can I keep my status if my employer retains me but doesn’t issue me any pay?
In some situations, we’ve had clients who were offered to remain with their employer but without pay. While this may seem like a good loophole it can turn out to be trouble for both the worker and employee because the USCIS only considers a worker as “in status” when they’re being employed and paid.
Also, if you elect to change your status or file for an extension you’ll need to show proof of past employment in the form of pay stubs. However, if you’re not getting paid, these obviously won’t be available. This could easily cause problems and cause the USCIS to become suspicious of your immigration status. To help avoid this, work alongside a qualified immigration attorney.
Will my H-1B visa be revoked after a site visit?
The USCIS’s Fraud Detection & National Security Division has begun conducting regular site visits to employment locations where H-1B and L-1 workers are employed. This usually involves an officer from the USCIS arriving at the work site, checking the driver’s license and identity of the H-1B worker, and asking a few basic questions to the worker about his or her work experience, education, and current work. However, other questions may be asked including whether or not the beneficiary paid the H-1B costs.
Should the officer decide that the answers to these questions are unsatisfactory, or if the officer encounters issues with the employer, things may be set in motion that could lead to the H-1B being revoked. If you entered the country in good faith and are still adhering to your status, you should not have anything to fear from an H-1B site visit.
However, these site visits are intended to detect fraud and working situations that do not adhere to H-1B regulations. For example, if you were sponsored by a staffing agency and now work for a different employer, you may encounter issues with your site visit. Because each situation is unique, it is important to check with your immigration attorney to see what the ramifications are.
What’s the difference between unlawful presence and out of status?
Unlawful presence is not the same thing as out of status. An individual’s “authorized period of stay” is indicated on their I-94 or USCIS official policies. Assuming time remains on your I-94 then you will not be accruing unlawful presence.
An “out of status” label is when an immigrant has lost their status due to unforeseen violations of the visa terms (i.e., laid off, revoked, etc.). Other scenarios where an individual may experience “out of status” include:
- Being employed without first ascertaining the proper authorizations
- Not marrying a petitioner for a K-1 visa
- Not attending the designated school under an F-1 visa
It’s necessary to note that being H-1B “out of status” can eventually lead to removal so it shouldn’t be considered a safety blanket by any means. Therefore, you are accruing unlawful status as long as you are in the U.S. while being out of status.
In terms of unlawful presence, if you have accrued 180 to 365 days of illegal presence in the U.S., then you will be barred from the country for 3 years if you leave and attempt to return. If your unlawful presence exceeds 365 days, you’re barred for 10 years. Consult with an attorney as to how an H-1B revoked status may affect you.
If I am being paid through a severance package several months after I stop working, will I still be considered out of H-1B status?
Your H-1B status ends and your grace period begins the moment that your employment ceases regardless of whether you are still being paid through a severance package. The same concept applies if you are officially on the employer’s payroll but not working.
There have been instances when the USCIS will overlook a brief gap in your pay stubs when you seek a change of employer, but you cannot count on this. Always consult with an immigration attorney before making any assumptions regarding your immigration case.
What if my H-1B was revoked by the USCIS when it was cap exempt?
A revoked H-1B is a revoked H-1B, regardless of whether or not it is subject to the cap. A cap-exempt employer can still go out of business or choose to terminate a contract with a beneficiary, which would result in the revocation of the visa. However, if this was a mistake and the cap-exempt employer wants to reinstate the H-1B status, there is an advantage. While the employer will still need to start the H-1B process over again (starting from getting a new LCA), they will not need to wait until the cap window opens on April 1st and the beneficiary will not need to wait until October 1st to begin working.
How can I check if my H-1B is revoked?
If your H-1B has been revoked, you will receive a revocation notice from the USCIS. The day that the notice is sent will mark the beginning of the 60-day grace period granted by the Federal Register’s rule. If you are unsure about any aspect of the case, you can check the USCIS case status page to see where you stand. You will need to enter in your case receipt number in order to see your status.
Is my employer responsible for paying me until USCIS officially revokes my petition?
There is a lot of gray area in this question because, based on the Department of Labor, the employer is responsible for paying the H-1B employee until there is an official termination of the employment relationship.
However, it may be unclear when this termination occurs due to the fact that they must request an H-1B revocation and also comply with the return obligations. Typically, the employer will make it clear in writing when the termination date is and will halt payments accordingly.
H-1B Revoked or Laid Off: The Next Steps
When you first learn of getting your H-1B revoked and a revocation notice is sent by the USCIS or that you’ve been laid off, it’s time to begin looking for another job/employer. Even though the Federal Register has provided an extensive grace period, it is not wise to squander the time that has been given to you. Taking immediate action can save you problems in the future.
If you were laid off but your status was not revoked, then you should still seek to change employers or change your status due to the fact that your H-1B status ends on the day that you stop working.