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H-1B workers who are benched or underpaid not only feel financially exploited, they may also feel emotionally exploited, especially if they have an employer whose main motivation tactic is to threaten to revoke your visa.

Understandably, H-1B workers who feel exploited and unappreciated will want to quit their job, and may do so in the heat of a particularly bad fight with their employer. Stop! Before you take such drastic action, take a deep breath and contemplate the consequences.

If you are on an H-1B work visa and you quit your job, even though your employer may have committed violations, you may be the one who will suffer the worst consequences of your job ending. In this article, we explain key problems you could create for yourself if you quit your H-1B job.

No Grace Period

Contrary to rumors, H-1B workers do not have a grace period if they quit their jobs. Immigration forums are loaded with bad information about so-called grace periods. Some insist 10 days, others will even say a month, or longer. All are wrong. No formal grace period exists.  If you quit your H-1B job and have no alternative H-1B employer or other means to obtain lawful status, then you would be required to leave the United States.

Failure to Maintain Status

H-1B workers who quit an H-1B job with no other status in hand are considered to be no longer maintaining their status. What this means is if you quit an H-1B job abruptly, then you are not eligible to change your status (e.g. to F-1 student) or to extend your stay (i.e. transfer to another H-1B employer) while remaining in the United States. Instead, if you apply for a change or extension, you must leave the United States and upon approval, apply for a new visa to re-enter the United States. In practice, USCIS may overlook a very short failure to maintain status, such as a few days or a week or so, before you file an application for change of status or extension of stay, but that forgiveness is entirely up to USCIS’ discretion. Legally, you have no right to stay in the United States after you have quit your job, regardless of the reason, and USCIS is not obligated to approve your new application for a new H-1B or change of status.

Extraordinary Circumstances

If you quit your H-1B job without first arranging for a new status,  then you are potentially giving up your ability to take advantage of a useful provision of the law to stay in the United States. Staying with your job (even if you are eventually fired), or waiting until you have a plan for obtaining a lawful status when you quit, may be the better strategies given the applicable law.

Specifically, there is a provision in the law that forgives H-1B workers who lose their status because they were fired due to “extraordinary circumstances” beyond their control. Also, the “extraordinary circumstances” law can help a benched H-1B worker apply for a new H-1B employer despite not having paystubs that are usually needed for the transfer process.  We have discussed this helpful “extraordinary circumstances” regulation in other posts. The term “extraordinary circumstances” is not defined, but USCIS has indicated it may consider “extraordinary circumstances” to include H-1B holders have not maintained their status due to their employer’s fault, such as by being benched or by having been fired in retaliation for complaining about being benched or underpaid.

Please know that citing this law and telling USCIS you have “extraordinary circumstances” based on benching or being fired, does not guarantee you will be able to stay in the United States. USCIS has absolute discretion to determine whether there are “extraordinary circumstances”, and to approve or deny your request.  We, however, have had H-1B workers who have been benched or fired successfully use this provision to change their status or transfer to another employer without having to leave the United States.

The key to using this provision is your failure to maintain your status must be your employer’s fault. If you quit your job without waiting to first obtain another lawful status, then it would not be your employer’s action that caused this lack of status. Rather, you would be taking the action that is putting you out of status, even if you are quitting because of your employer’s unlawful conduct. By quitting your job in this way, you are making your situation much more complicated, and you may be compromising your ability to take advantage of the “extraordinary circumstances” provision of the law.

Plan Ahead; Save Yourself

As an H-1B holder, you have fewer options for quitting bad employers than US citizens or green card holders if you want to remain in the United States. You need to plan ahead and act smart. As frustrating and difficult as your current H-1B employment situation may be, before you act, and potentially make your situation worse, you should talk to a competent attorney and learn about your rights and options.

For more information about the legal services we offer H-1B workers, see our page here.