A growing number of H‑1B visa holders are receiving Notices to Appear (NTAs), which initiate deportation proceedings, after their H‑1B petitions are withdrawn following job termination. While not every withdrawal leads to an NTA, every reported NTA case involved a prior petition withdrawal.
What Is Happening
By law, employers are required to notify USCIS and withdraw the H-1B petition when an H-1B employee is terminated or laid off. This is a regulatory obligation under 8 C.F.R. § 214.2(h)(11)(i)(A), which helps formally end the employer’s sponsorship and limit ongoing liability. Failure to properly withdraw the petition can expose the employer to wage obligations under Department of Labor rules. Withdrawal also starts the 60‑day grace period during which the worker can remain in the U.S. to find new employment or apply for a change of status, assuming they were in valid status at the time of termination.
However, USCIS now appears to be undermining that grace period by issuing NTAs while it is still in effect. NTAs have been served to individuals with pending change of status filings, newly approved H‑1Bs, and even those who had already left the country. While the grace period was intended as a buffer following job loss, current regulations give USCIS discretion in its application, and recent trends suggest it may be shortening or bypassing it entirely.
In one known case, an immigration judge denied a motion to terminate removal proceedings by asserting that the 60‑day grace period was discretionary and USCIS had acted within its rights. The current landscape suggests that USCIS and the courts are interpreting the grace period more narrowly than before.
What H‑1B Workers Should Know
- If your H‑1B is withdrawn, do not assume the grace period protects you. USCIS may no longer honor a pending change of status application (Form I-539) or H-1B change of employer petition (Form I-129) once an NTA is issued. Immigration judges are unlikely to consider a pending application sufficient to preserve status. They generally want to see approved status.
- If you receive an NTA, do not leave the United States without legal guidance. You may need to request voluntary departure through the immigration court to avoid accruing unlawful presence. Leaving without doing so can trigger a reentry bar.
- If an employer is willing to sponsor you, and your new H‑1B is approved by USCIS, the immigration court should terminate removal proceedings. This remains the most effective legal strategy.
- You can check the status of your case and whether an NTA has been issued using your A number on the EOIR case status system.
Should a Laid-Off H-1B Worker File Form I-539 Right Away?
Yes, we strongly recommend this based on current trends. If you are laid off while on H-1B status, the 60-day grace period begins the day after your last day of employment. During that time, you can either find a new H-1B sponsor or file Form I-539 to request a change of status, such as to B-2 visitor or H-4 dependent. Filing Form I-539 as early as possible helps preserve your period of authorized stay while your application is pending, even if the 60 days expire before a decision is made. Further, a new employer may file Form I-129 while the I-539 is still pending; USCIS has signaled in the last that it will simultaneously adjudicate an H-1B transfer petition despite the pending I-539. While USCIS has recently issued NTAs to individuals with timely I-539 filings or even approved H-1Bs, submitting this application on the early side of the 60-day discretionary period establishes a clear record of compliance and may support future options if removal proceedings are initiated.
What Employers Should Do
- Encourage new hires to wait for H‑1B transfer approval before submitting notice to their current employers. Early withdrawal increases the chance of an NTA being issued. New employers may want to file their H-1B transfer cases by premium processing.
- Do not automatically rule out candidates with an NTA. USCIS retains jurisdiction over H‑1B petitions, even when someone is in removal proceedings. If the transfer is approved, the court can terminate the case. Filing quickly can resolve the issue and allow you to retain a qualified candidate.
This recent shift in USCIS enforcement creates risk for H‑1B workers who are laid off and for employers trying to bring them on board. The grace period is no longer a reliable safety net. Taking fast, strategic action after termination or before filing a transfer is more important than ever.
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