If you are an H-1B visa holder waiting in the green card backlog, it’s important to know exactly what you can and cannot do when it comes to taking long breaks, quitting your job, or facing layoffs. The H-1B visa is employer-specific, meaning your legal status in the United States 🇺🇸 depends on your ongoing employment with the company that sponsored your visa. The green card backlog, especially for people from India 🇮🇳 and China 🇨🇳, makes this even more complicated, as you may be waiting many years for permanent residency. Here’s a clear guide to help you figure out if you qualify to stay in status, what the rules are, and what options you have if your job situation changes.
Eligibility: Can You Take a Long Break, Quit, or Get Laid Off and Still Keep Your H-1B Status?
YES, you can keep your H-1B status if:
– You remain actively employed and paid by your sponsoring employer.
– You take a short, authorized paid leave (such as vacation or sick leave) that follows your company’s normal policies.
– You switch to a new employer, but only if the new employer files an H-1B transfer petition and you start working for them after getting the receipt notice, all within the allowed time frame.
NO, you cannot keep your H-1B status if:
– You take an unpaid leave or long break without proper authorization from your employer.
– You quit your job and do not have another employer file an H-1B transfer petition within 60 days.
– You are laid off and do not find a new employer to sponsor you within the 60-day grace period.
– You work for any employer other than the one who sponsored your H-1B, unless you have a valid transfer petition filed.
Detailed Requirements and Examples
1. Employer-Specific Status
– Your H-1B visa is tied to the employer who filed your petition. If you stop working for them, your visa is no longer valid unless you take quick action.
– Example: If you work for TechCorp and want to move to CodeWorks, CodeWorks must file a new H-1B petition for you. You can start working for CodeWorks only after they get the receipt notice from USCIS.
2. 60-Day Grace Period
– If you lose your job (either by quitting or being laid off), you have up to 60 days to find a new employer and have them file an H-1B petition for you. If you don’t, you must leave the United States 🇺🇸 or change to another valid status.
– Example: You are laid off on June 1. You have until July 30 to get a new job and have your new employer file the H-1B transfer. If you don’t, you must leave or change status.
3. No Work Allowed During Unpaid Breaks
– Taking an unpaid break without proper authorization is risky. The law expects you to be actively working and paid. If you are not, you could be considered out of status.
– Example: If you ask for a three-month unpaid break to travel, and your employer does not have a policy allowing this, you may lose your H-1B status.
4. Quitting Without a Plan
– If you quit your job, you must have a new employer ready to file a transfer within 60 days. If not, you lose status and must leave the country.
– Example: You resign on August 1. If you do not have a new job and transfer filed by September 30, you must leave the United States 🇺🇸.
5. H-1B Portability
– You can transfer your H-1B to a new employer, but the new employer must file a petition and get a receipt notice before you start working for them. This must happen within the 60-day grace period.
– Example: You accept a job at DataSoft. DataSoft files the H-1B petition on day 45 of your grace period. You can start working for them as soon as they get the receipt notice.
Disqualifying Factors
You will lose your H-1B status and may have to leave the United States 🇺🇸 if:
– You do not find a new employer within the 60-day grace period after quitting or being laid off.
– You take unauthorized unpaid leave or a long break without pay.
– You work for a different employer without a valid H-1B transfer petition filed.
– Your new employer does not file the transfer petition in time.
– You violate the terms of your H-1B status in any way, such as working outside your approved job duties.
Risks While Waiting in the Green Card Backlog
The green card backlog, especially for H-1B visa holders from India 🇮🇳 and China 🇨🇳, can last more than 10 years. During this time, you must keep your H-1B status active. If you lose status, you may lose your place in line (priority date) for a green card. If you change employers, your new employer usually has to start the green card process over (PERM and I-140), but you may be able to keep your old priority date if your previous I-140 was approved and not revoked for fraud.
Example:
You have an approved I-140 from your old employer. You change jobs, and your new employer files a new PERM and I-140. If your old I-140 was not revoked for fraud, you can keep your original priority date, which saves you years of waiting.
Alternative Options if Not Eligible
If you cannot keep your H-1B status, you have a few options:
– Change to another visa status: If you qualify, you can apply for a different visa, such as F-1 (student) or B-2 (visitor), but you must do this before your 60-day grace period ends.
– Leave the United States 🇺🇸 and re-enter later: If you lose status, you may need to leave and apply for a new visa from abroad.
– Apply for a dependent visa: If your spouse has a valid H-1B or another visa, you may be able to switch to a dependent status (such as H-4).
– Seek legal advice: Immigration law is complex, and a qualified attorney can help you find the best option for your situation.
How to Improve Your Chances of Staying in Status
- Keep your employment continuous: Avoid gaps in employment. If you know a layoff is coming, start looking for a new employer right away.
- Understand your employer’s leave policies: Only take unpaid leave if it is allowed by your employer and follows company policy.
- Prepare for green card portability: If you plan to change jobs, make sure your new employer understands the green card process and is willing to help you port your priority date.
- Keep all documents up to date: Save copies of your H-1B approval notices, pay stubs, and I-140 approval notices.
- Consult with an immigration attorney: They can help you avoid mistakes that could cost you your status or green card eligibility.
Recent Policy Updates Affecting H-1B Visa Holders
As of January 17, 2025, new rules have been put in place to protect workers and add some flexibility for employers, but the main rules about employer-specific status and the 6-year maximum stay remain the same. The updated Form I-129 must be used for all new H-1B petitions, and you must follow the new rules closely.
USCIS is also being stricter about checking for fraud and invalid registrations. If your employer or you are found to have submitted false information, your petition can be denied or revoked.
The Visa Bulletin for 2025 shows that the green card backlog for India 🇮🇳 and China 🇨🇳 is not improving, so long waits will continue.
Official Resources
For more information about H-1B rules, visit the USCIS H-1B Specialty Occupations page. This official government site has the latest updates and forms.
Summary and Practical Guidance
- H-1B visa holders must keep working for their sponsoring employer to stay in status.
- If you lose your job, you have 60 days to find a new one and have your new employer file a transfer petition.
- Taking unauthorized unpaid breaks or quitting without a plan can cause you to lose your status and place in the green card backlog.
- If you change jobs, make sure your new employer can help with the green card process and port your priority date if possible.
- Always keep your documents up to date and consult with an immigration attorney for complex situations.
As reported by VisaVerge.com, staying informed and prepared is the best way for H-1B visa holders to protect their status and green card chances during long waits and job changes. If you’re unsure about your situation, use official resources and seek legal advice to make the best decisions for your future in the United States 🇺🇸.
This Article in a Nutshell
