Navigating Your Options If Terminated as a Foreign Nurse on a U.S. Visa

Damian Knowles
05.15.2023 16:42
What If I'm Fired?


Overview

A foreign nurse needs to know what options are available following termination or simply know how to transition to another employer. This section is an essential resource for all nurses whose employment may become terminated, either voluntarily or involuntarily. 


I provide up-to-date information on the various options available to nurses seeking to remain in the United States, including how to extend your stay, change your visa status, and more.


Key Points

  • Learn what options are available if you decide to stay in the United States. 
  • Know in advance the period of authorized stay following termination.
  • Learn ways to begin working for a new employer - the right way.


What Options Are Available if You Are Fired?

It’s not the end of the world - perhaps your boss was a jerk, perhaps you were not a good fit? If your employment is terminated, either voluntarily or involuntarily. You may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations.


There are a few options available to you as an immigrant worker seeking to remain in the United States for a period of authorized stay following termination. 


Please note that not all options below provide employment authorization.

  1. Sixty-Day Grace Period
  2. Portability to a New Employer
  3. Change of Status
  4. Change of Status and Employer
  5. Adjustment of Status
  6. Period of Authorized Stay
  7. Expedite Criteria
  8. Departure from the United States


U.S. Citizenship and Immigration Services (USCIS) provides guidance for non-immigrant workers whose employment has terminated, either voluntarily or involuntarily. These workers may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations.


The following is a compilation of options that may be available to non-immigrant workers seeking to remain in the United States for a period of authorized stay following termination. Please note that not all options below provide employment authorization.


A. 60-Day Grace Period

Regulations permit a discretionary grace period that allows you to maintain your immigration status following termination for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter. 


During this 60-day timeframe, workers may be able to maintain their non-immigrant status if a new employer timely files a petition on their behalf with an extension of stay request.


Alternatively, workers may be able to remain in the United States for a period of authorized stay if they timely file an application to change to a new non-immigrant status or an application for adjustment of status, if eligible. 


On the other hand, if you are unable to file a change of status application timely, or find a new employer who timely files a change of employer petition for the worker, you may be required to leave the country at the end of this grace period.

B. Portability to a New Employer

Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. More information about H-1B portability can be found on our H-1B Specialty Occupations page.


Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. This is commonly referred to as “porting.” 


C. Change of Status

Workers may use the up to 60-day discretionary grace period to apply to change their non-immigrant status, which may include changing status to become the dependent of a spouse. 


Some individuals in a dependent non-immigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 non-immigrants. 


D. Change of Status and Employer

Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored non-immigrant status in the same or different status. The timely filing of a non-frivolous change of status application will prevent the accrual of unlawful presence until the application is adjudicated. 


E. Adjustment of Status

Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 Extraordinary 


Ability, EB-2 National Interest Waiver, or EB-5 Immigrant Investors. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD).


F. Period of Authorized Stay - Compelling Circumstances Employment Authorization 

Document Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:


  • Do not have an immigrant visa available to them in the department of state’s visa bulletin, and
  • Face compelling circumstances.


G. Expedite Criteria

Some circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization.[1]


H. Departure from the United States 

Workers may choose to depart the United States. Once abroad applicants may seek U.S. employment and readmission to the United States. 


Supporting Documentation

  1. Chapter 5 - Job Portability after Adjustment Filing
  2. Options for Non-immigrant Workers Following Termination of Employment


Forms

  1. FL Nursing License by Examination Application
  2. Electronic Fingerprinting Form
  3. Licensure Requirements for a Multi-state License
  4. USCIS Form I-485 Supplement J Request for Portability 

    



Frequently Asked Questions


What happens if you lose your job on a work visa USA?

If sponsored employment is lost, such as being laid off, there is generally a 60-day grace period for work visa holders to find a new job before they have to leave the country.


What happens to your visa if you get fired?

If you get fired on a work visa, you will have a 60-day window to gain employment elsewhere, prepare to return to your country of origin or try to obtain another type of visa when possible.


Can you terminate an employee on visa?

To qualify, a foreign worker must be sponsored by a U.S. employer. Employers can terminate an H-1B visa worker without penalty; however, doing so causes the employee to lose status to live and work in the U.S., which triggers obligations for the employer.

Damian Knowles