A. Not necessarily. You may wish to consider looking for new H-1B employment, if that can be accomplished within a reasonable period of time. As a matter of practice, INS frequently overlooks gaps in employment lasting 30 days or less, when reviewing applications for change or extension of nonimmigrant status. For gaps of longer duration, there may still be a chance to successfully extend or change nonimmigrant status. An INS spokesperson has publicly commented that, regardless of gaps in employment, nonimmigrant workers may be able to file for an extension or change of nonimmigrant visa status upon demonstrating extraordinary circumstances.

Regrettably, the absence of INS regulations leaves no clear or easy answer to such situations. Therefore, there is always some risk that an application filed with the INS after an employee is terminated is at risk of denial, even though many such applications are approved.

Q. Exactly what happens to my H-1B status if I'm laid off?

A. INS regulations provide no guidance as to the effect of layoffs upon nonimmigrant visa status (such as H-1B status).

INS regulations require all nonimmigrant workers to maintain their nonimmigrant status if they are to remain eligible for extension or change of nonimmigrant status. The INS has commented publicly that they construe the word "maintain" to include ongoing employment as a condition of maintaining H-1B nonimmigrant status. Therefore, if an H-1B nonimmigrant worker is laid off, there may be some risk of complications when applying for further INS benefits, such as extending H-1B status with another employer, or changing to another nonimmigrant status.

Q. I heard that an H-1B employee has 10 days to leave the United States or file a new application with the INS after being laid off? Is that true?

A. The so-called "10 day" regulation allows H-1B petition beneficiaries admission to the United States for 10 days beyond the validity period listed on the H-1B petition. This regulation does not purport to explain how long, or whether, an H-1B employee may remain in the United States after employment is terminated.