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Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28492
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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My husband who is an H1B holder got informed that he will be

Customer Question

My husband who is an H1B holder got informed that he will be laid off in 2 months.
1) Is there a period during which he can stay the US after contract termination?
2) As I understand, if he will find a new employer, he can do a visa transfer.
3) Can a new employer file a visa transfer, even after he will be officially laid off or it should be done during these two months?
4) I have learnt from the UCIS page that “the H-1B worker may be eligible to remain in the United States due to a request for a change of status or for extension of stay”, especially for the case of the layoffs. What documents are necessary and who is supposed to file the extension? For how long it might be given?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith Ludwic replied 1 year ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

I am sorry about the bad news your husband has received.

1) Is there a period during which he can stay the US after contract termination?

There is no grace period. He is immediately out of status from the time he is no longer productively working for the H1B employer.

2) As I understand, if he will find a new employer, he can do a visa transfer.

There is no such thing as a "transfer". If he finds a new employer the new employer can file a petition for him for a change of employer as long as that petition is filed before his last day at work on the payroll.

3) Can a new employer file a visa transfer, even after he will be officially laid off or it should be done during these two months?

The new employer can file a petition for him but if he is officially no longer working for the old employer he cannot get a new I-94. He has to leave the country and come back in on the H1B visa stamp to get an I-94 to work for the new employer.

All the family would also loose their H4 status at the same time your husband goes out of H1B status and they also have to leave the US.

4) I have learnt from the UCIS page that “the H-1B worker may be eligible to remain in the United States due to a request for a change of status or for extension of stay”, especially for the case of the layoffs. What documents are necessary and who is supposed to file the extension? For how long it might be given?

Yes, this is correct. If your husband files an I-539 (including ALL family members) requesting a change of status from H1B (and H4) to B2 for visitor for pleasure BEFORE his last day on the employer payroll he will be given time to prepare for departure.

He needs to submit a statement that he needs several months to settle his personal affairs, do some sight seeing with his family and prepare for departure. He has to provide evidence of the financial means to pay for these expenses to remain here without working unlawfully. He must also provide copy of his return airline ticket for himself and family to show he is going to leave.

He can ask for up to 6 months but it is better to ask for less. Then if he finds a new employer during this time his change of status is pending the new employer can use this change of status to file the new petition and get an I-94 so everyone does not have to return to home country and re-enter on H visa.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Understand, it is my job to be honest and truthful about the law and sometimes the law does not give you the solution or options you want. Kindly give me a positive rating when you are done. If you feel I earned a BONUS, I am grateful. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
Thanks!
I understand that we are going to be "out of status" when his contract will be treminated. But still, how is it possible to leave a country right next day?
Expert:  Judith Ludwic replied 1 year ago.

Unfortunately, the USCIS does not take into consideration your personal needs! They set forth the policy guidelines based on the law and the law says once you are terminated you are out of status.

Unfair, unreasonable, I would agree. But I don't make the laws.

I can tell you if you depart within 10 days the consul would usually take into consideration the difficulties with a departure any sooner than that and not use it against you in future visa applications.

I see this is the first time you are using JA and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Expert:  Judith Ludwic replied 1 year ago.

If you feel you need more prep time then that is why there is the option of filing the I-539 for a change of status before the last day on the job. Since you have notice, it is very easy to do that and not be in violations.

I see this is the first time you are using JA and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith