When your H-1B visa expires, it’s essential to understand the potential challenges you might face in maintaining your work status. Many workers wonder, “H-1B visa out of status, can I continue to work?”
The consequences of being out of status can include losing the ability to work legally, which can disrupt your career and residency plans. In this blog, we’ll help answer this critical question by exploring the legal pathways to continue working after your H-1B expires, such as status maintenance, H-1B portability, and the grace period options. We’ll guide you through practical steps to stay in compliance.
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What does H-1B Status Maintenance Mean?
Maintaining lawful H-1B status is crucial for staying employed in the U.S. after your visa expires. Status maintenance refers to remaining in valid status, even if your visa expires while waiting for an extension or change of status. Here’s why it’s important:
- Avoiding Unauthorized Work: Working without authorization can jeopardize your future visa and immigration applications.
- Legal Stay: By maintaining your status, you remain lawfully in the U.S. while waiting for an extension or a change of status.
- Employment Flexibility: If your employer files an extension, you may continue working even after your visa expires, depending on the circumstances.
When an extension petition is filed before your visa expires by your employer, you may be able to continue working under the 240-day rule, which allows you to stay employed while USCIS processes your extension request. The 240-day rule only applies to extensions of stay with the same employer (not new employment).
However, it’s essential to remember that maintaining lawful status is not automatic. You must ensure that all paperwork is filed on time and that you meet specific criteria to avoid issues. If you’re unsure of your status or next steps, consulting an immigration attorney is strongly advised.
Need assistance maintaining your H-1B status or understanding your options? Contact Sweta Khandelwal today to ensure your status stays intact and your work continues without complications.
Can I Continue to Work Once My H-1B Visa Expires?
When your H-1B visa expires, the question of whether you can continue working largely depends on your situation and what actions you’ve taken to maintain your status. Here’s what you need to know:
According to the 240-day rule, you can work legally for up to 240 days beyond the expiration of your current visa.
Conditions for the 240-day Rule:
- Timely Petition: The employer must file the Form I-129 before your H-1B status expires. The 240-day rule applies only to extension petitions, not H-1B transfers or amendments.
- Same Employer: You can only continue working for the employer that has filed your extension petition.
- I-9 Form Compliance: When an H-1B extension petition is filed, it is essential for the employer to keep the employee’s I-9 Form updated, ensuring that the worker remains authorized to work while the petition is pending.
To comply with Form I-9 requirements when requesting an extension of stay, the employer must keep the following documents with the employee’s existing Form I-9:
- A copy of the new Form I-129 (Extension of Stay Petition) or Form I-129CW.
- Proof that the filing fee has been paid.
- Proof of mailing the petition to USCIS.
Once the employer submits the petition to USCIS, they will receive a Form I-797C, acknowledging the petition has been received. The employer must then keep this Form I-797C with the employee’s Form I-9. At this point, the employer no longer needs to retain copies of the Form I-129, proof of payment, or mailing receipts.
When USCIS approves the extension petition, the employer will receive Form I-797, which includes an expiration date and an attached Form I-94, indicating the employee’s new authorized stay. The employer must enter the document title, number, and expiration date on Supplement B of Form I-9 (Reverification and Rehire). The employee should also be given the Form I-94 as evidence of their continued employment-authorized nonimmigrant status.
By following these steps and maintaining proper documentation, the employer can ensure that the employee remains in compliance with work authorization while waiting for the extension petition to be processed.
For workers under the American Competitiveness in the 21st Century Act (AC21), certain provisions extend the validity of their H-1B status beyond the usual 6 years, such as when a labor certification or I-140 petition has been filed but not yet adjudicated. AC21 extensions beyond 6 years apply only if:
- PERM labor certification (Form ETA 9089) or I-140 petition was filed at least 365 days before the H-1B max-out date.
- An approved I-140 exists, but the employee cannot yet file an I-485 due to visa retrogression.
These extensions can allow workers to stay and continue working until a final decision is made on their permanent residency application.
- What Happens If the Extension Petition Is Denied?
If USCIS denies your petition, you are no longer authorized to work, and you must immediately stop working. The period for working under the 240-day rule ends when the denial is issued. This highlights the importance of filing your extension request as early as possible to avoid a lapse in employment authorization.
Also Read: Path from O1 Visa to EB1 Visa
Options After H-1B Termination
Once your H-1B employment ends, whether voluntarily or involuntarily, it’s critical to understand your options for remaining in the U.S. legally. Many people mistakenly believe that they must leave the U.S. immediately, but there are still several paths you can pursue after your H-1B status is terminated:
1. Change of Status (If You’ve Already Filed Before Expiry)
If your H-1B has expired or you have been terminated, you may still be eligible to apply for a change of status to another nonimmigrant visa (like F-1, B-2, or others), but only if you apply while in valid status or during the grace period. If your H-1B has already expired, you must file your application for the new status immediately to avoid unlawful presence.
2. Adjustment of Status to Permanent Resident
If you have applied for a green card, you can file for adjustment of status (Form I-485) if you were already in the process before your termination. However, if your status has expired and you have not applied yet, you may need to leave the U.S. and apply for your green card from abroad.
3. Compelling Circumstances EAD
If you find yourself in a situation where your adjustment of status or other immigration matters are pending, you may apply for an Employment Authorization Document (EAD) or (Form I-765) under compelling circumstances. This allows you to continue working while your situation is resolved, but this option is available only in specific cases and should be pursued immediately after termination.
4. Non-Frivolous Petition for New H-1B Employer
If your H-1B status has been terminated, but you have found a new employer willing to sponsor you, they can file a new H-1B petition for you. You must ensure that the new petition is filed within your grace period or while you’re still in valid status, as you cannot start working with the new employer until the petition is filed.
- The 60-Day Grace Period
After H-1B termination, you may also be eligible for a 60-day grace period, which allows you to remain in the U.S. for up to 60 days to find a new job or transition to a different immigration status. During this period, you can search for new employment, file for a change of status, or even apply for a new employer petition. However, it’s crucial that you act within the 60-day window.
What If I Don’t Take Any Action?
If you don’t apply for a change of status, file for adjustment of status, or get a new employer petition filed on your behalf within the 60-day period, you will begin accruing unlawful presence. This can severely impact your ability to stay in the U.S. or return in the future. Unlawful presence begins only when:
- Your I-94 expires (not immediately after the grace period).
- You receive a denial or removal order from USCIS.
- What If I’m Laid Off?
In the case of involuntary termination (such as a layoff), the 60-day grace period applies. This gives you additional time to consider your options and avoid leaving the country immediately.
If your employment ends, don’t panic! You have the option to stay in the U.S. legally if you act quickly. To ensure you’re making the best decisions for your future in the U.S., reach out to The Law Offices of Sweta Khandelwal.
H-1B Portability and Employment Gaps
One of the key benefits of the H-1B visa is portability, which allows you to change employers without losing your H-1B status. This flexibility is crucial if you’re laid off or looking for a new opportunity.
- Understanding H-1B Portability Rules
H-1B portability enables eligible workers to “port” employment with a new employer as soon as that employer files a non-frivolous H-1B petition (Form I-129) on their behalf. This is possible even before the petition is approved, as long as the petition is filed properly and within the valid H-1B status for portability to apply.
This process applies to H-1B workers who are switching employers or if you’re transferring your H-1B status under a new employer’s petition. Additionally, premium processing can significantly reduce the wait time for adjudication of Form I-129, Petition for Nonimmigrant Worker, ensuring faster decisions on your new job petition.
Also note that If you are changing status or using the grace period, you must wait for approval before starting with the new employer. However, if the petition is filed before the grace period ends, you can stay in the U.S. legally during processing.
- Handling Gaps in Employment Legality
If you’re without a job but have filed for a change of employer, it’s important to ensure you don’t have an employment gap that could impact your status. While your new employer’s petition is pending, you can remain in the U.S. legally, but you should avoid any gaps in employment that might complicate your case.
Seeking Extensions and Adjustments
If your H-1B visa is nearing expiration, you may need to file for an extension to continue working legally in the U.S. This section will guide you on the proper timeline and requirements to ensure you’re compliant and avoid any status gaps.
- Timeline for Filing Extension Petitions
Extensions for H-1B visas can typically be filed up to 6 months before your current visa expires. It’s crucial to initiate the process early to avoid any interruptions in your employment. Delaying the filing may result in a lapse in status, which could have serious implications for your legal ability to remain and work in the U.S.
- Filing Amendment and Extension Petitions
In addition to extensions, if there are any changes in your employment situation (like a job title change, location shift, or change of employer), your employer will likely need to file an amendment petition to reflect these changes. The amended petition can be filed at the same time as the extension petition or separately, depending on the circumstances.
- Filing Form I-765 for H-4 Dependents
If you are on an H-1B visa and have dependent family members in the U.S. under H-4 status, they may also need to apply for an Employment Authorization Document (EAD) if they want to work. In this case, the Form I-765 should be submitted alongside your H-1B extension petition. Make sure to follow the guidelines on when and how to apply for the EAD to avoid unnecessary delays.
Need help with the filing process? Contact the Law Offices of Sweta Khandelwal for assistance in filing your extension and avoiding any potential pitfalls.
Navigate Your Immigration Journey with Confidence
Conclusion
Navigating H-1B visa extensions and maintaining status can be complex, but timely planning and understanding your options are key to avoiding disruptions in your employment. Whether you are extending your visa, seeking a new employer, or changing your status, it’s crucial to stay ahead of deadlines and ensure all documentation is filed correctly.
Consulting with an immigration professional or legal expert can provide invaluable guidance throughout this process. If you find yourself approaching the end of your H-1B status or dealing with potential changes in employment, take action now to explore your options and ensure you remain compliant with U.S. immigration laws.
Need expert guidance on your H-1B extension? Contact Sweta Khandelwal to discuss your specific case and ensure you’re on track for a successful extension. You can also schedule a consultation with The Law Offices of Sweta Khandelwal whether you’re seeking an extension, changing employers, or adjusting your status. Contact The Law Offices of Sweta Khandelwal to start your extension process today and avoid unnecessary delays by getting the proper documentation and support in place now.
Disclaimer
Please note that the prices listed for visa services are estimates and may vary in real-time. We recommend consulting the official government websites or other authoritative resources for the most up-to-date pricing information. These estimates do not constitute a guarantee of costs, and fees may change without notice.
