H1-B Visa Withdrawal And Revocation

Acquiring H1-B visas is not easy. From beginning to end, it is a stressful process for graduates who want to work in the United States. First, they need to find an employer willing to sponsor them. Then, they need to file the visa petition (the employer’s responsibility) and wait for the selection.

Finally, they must attend the interview and get their visa approved. With so many things at stake, facing the H1-B visa revocation is equally or even more challenging than a refusal or visa denial. If you recently received an unexpected withdrawal of your H1B visa, you may wonder what your next steps are and how you can stay in the US.

Even though it may seem overwhelming, there are steps you can take to avoid an H1-B visa revocation/withdrawal and still find employment in this country. Here is some useful information you need to learn to navigate the H1-B visa revocation without completely losing out.

The meaning of H1-B visa revocation

An H1-B visa revocation occurs when your employer decides or is compelled to withdraw your H1-B petition. It can happen before you get your H1-B visa or while you are already in H1-B status. In most cases, your employer either decides to drop out of the immigration process before it is finalized and withdraws your petition, or they go out of business and have to withdraw.

Your petition will also be withdrawn if you are fired or laid off. Because revocations can result in serious consequences, such as being considered out of status, it is important to understand how the H1-B visa revocation works.

Who can revoke the H1-B status?

An employer cannot revoke an H1-B status. Only the immigration service (USCIS) can do that. The regulations specify exactly when an H1B needs to be revoked. There are only two situations in which an H1-B visa revocation can be done automatically:

1. The sponsoring employer ceases to exist;
2. The sponsoring employer files a petition for withdrawal.

All an employer can do is request that USCIS withdraw the petition. Once USCIS receives a petition for withdrawal, the petition will be automatically revoked. It is important to note that an employer is required to inform the immigration service when an employment relationship ends (e.g., the employee resigns or the employer fires the employee). Visa holders may think an employer is spiteful, but they do not have a choice.

What is a withdrawal notice?

An employer must notify USCIS by letter of the termination of the employment relationship, whether it is terminated or resignation. This is necessary because if USCIS is not notified of the withdrawal, wage entitlements under the LCA may continue to apply. Notifying the employee is not sufficient.

An employer can accomplish a petition withdrawal by writing a letter of withdrawal to the agency that approved the petition. Please note that once a petition is sent to USCIS for withdrawal, it is no longer usable. If an employer re-hires the employee, they will need to file a new H1-B petition with fees.

Therefore, due diligence should be exercised before sending the H1-B petition withdrawal letter. Once USCIS receives it, a confirmation letter may take several weeks or months to receive.

The H1-B visa revocation process

When an employer withdraws an H1-B visa petition (for good reason or because it wants to lay you off), it must file a withdrawal petition involving several documents. Once the USCIS receives those documents, the revoking process begins.

As with most USCIS H1-B visa revocations, this process can take several months to a few years, so if you know your visa is about to be revoked, you might want to start searching for a new employer.

A recap of the reasons for an H1-B visa revocation

Contrary to what you might have heard, the USCIS has the sole authority to revoke the H1-B visa. No employer in the United States can cancel its foreign employees’ visas. The USCIS will issue an H1-B visa revocation if:

Your employer goes bankrupt and recommends that you have your visa revoked. Your visa can be revoked even before you are approved for an H1-B visa or while you are in the process of becoming a H1-B visa holder. All employers are required to notify the immigration services immediately upon terminating the work duration of their foreign employees.

There are other reasons why an employer may terminate an H1-B procedure before it is completed. These are also reasons for the H1-B visa revocation. If your employer fires you, the immigration services will revoke your H1-B visa petition.

H1-B visa revocation from site visits

The USCIS carries out routine site visits to H1-B employment sites. These visits typically include a check of driver’s licenses and identity. In addition, the USCIS may ask a few standard questions about work experience, education, and current work. Other questions may include whether the beneficiary paid for H1-B expenses.

If the officer finds that these questions are not answered satisfactorily or has issues with the employer, they can set the ball rolling for an H1-B visa revocation. If you have entered the country legally and are still maintaining your status, you do not need to worry about an H1-B visa site visit.

On the other hand, these site visits are designed to look for fraud and working conditions that don’t meet the requirements of the H1-B visas. For instance, if you have been sponsored by one staffing agency and are now working for another, you may encounter problems during the H1-B site visit.

Since each case is different, it is important to consult with an immigration lawyer to understand the consequences.

What is the notice of intention to revoke (NOIR)?

The notice of intent to revoke (NOIR) is the USCIS’s notice that it intends to reject an H1-B visa application. A NOIR may be issued even for applicants whose H1-B visa applications were approved in the past. The most common reason for a USCIS NOIR is the invalidity of an H1-B job.

How to check the H1-B visa revocation

To check your status, go to the USCIS case status webpage. Then, enter your USCIS receipt number. Once you have entered your receipt number, click the ‘check status’ option.

The new page will display your case status and your visa status. Your employer must submit a written application to withdraw the petition. Once the petition is withdrawn, the revocation process is almost instantaneous. USCIS will start processing your H1-B visa revocation immediately.

The final rule

If you suddenly find yourself without a job, you are entitled to a 60-day H1-B grace period. This grace period begins on the day you leave your sponsoring employer’s employment and ends on the last day of your visa validation period. In the past, you would have been considered out of status when your employment ended and would have been required to leave the country immediately.

However, the DHS has noticed that many foreign professionals cannot leave the country quickly if their employment unexpectedly ends. If your employer terminates your employment, you will have approximately two months to find another sponsoring employer, change your status, file an I-140 petition, or leave the United States.

You will not be considered out of status during this period, which can seriously affect your future efforts to enter the United States.

What an employer must do after an H1-B visa revocation

If employers terminate the employment relationship before the expiration date of the H1-B petition, they are required to provide return transportation costs. If employees terminate the employment relationship before the H1-B petition expires or if the employment relationship ends on the last day of the H1-B petition’s validity, employers are not required to provide a return transportation cost.

In most cases, the cost of return transportation is considered a one-way coach class airfare to your home country. Many employers choose to provide a 30-day period after the termination of the employment relationship for an employee to designate their preferred departure date, which is 60 days (or less) from the date they terminate the employment relationship.

This allows the employer to arrange the most affordable flight to the employee’s home country on or around their preferred departure date. It is also important to note that this return transportation cost must be used for return transportation purposes and not for any other purpose.

What to do when your H1-B petition is withdrawn

The most important thing is to act fast. The more time you take to decide what to do next, the more likely you will have to leave the country, at least temporarily. If you are terminated suddenly, if you can find a new job fast enough, you may be able to get an H1-B visa approval while you are still in the country.

It is important to note that if you file a transfer after you have quit your current employer’s job (i.e., you are not in status when you file), then you can’t start working for your new employer based on your H1-B visa transfer receipt notice.

Other options available

Since the employer no longer employs you, you may be able to petition for sponsorship from another employer or change your status to another visa category. This will save you from the consequences of an H1-B visa revocation.

If your spouse is on an L-visa or an H-visa, you can change your status first to an H-4 dependent status or an L-2 dependent status until you can find a new job. With the assistance of an immigration lawyer, this is a relatively straightforward and cost-effective solution that can buy you the time needed to review your immigration status.

One of the benefits of changing to an L-2 status is that it allows you to apply for employment authorization. If you want to go back to your native country, you may want to consider applying for a B-visa or a tourist visa until you have completed all your work in the United States.

Is H1-B withdrawal the same as H1-B visa revocation?

If an employer states that it will withdraw H1-B petitions, it is asking the USCIS for an H1-B visa revocation. Once the USCIS receives the petition, the H1-B visa revocation process kicks off. H1-B petitions are withdrawn when they are still under review, while H1-B visa revocations occur after the petition is approved.

Get help!

When you find out that the USCIS has issued an H1-B visa revocation notice, taking action now can save you headaches. The Federal Register has given you an extended grace period, but it is not worth wasting that time. You may be able to stay in the United States with the help of an experienced immigration lawyer. The immigration lawyers at Gehi and Associates will treat your case with the utmost attention to detail and care. Connect with us today!