The American Immigration Lawyers Association (AILA) has received clarification from the Vermont Service Center on whether an H-1B employee’s status is terminated when the petition has been revoked, particularly in AC21 portability situations. Generally, the USCIS’ stance is that an H-1B employee’s status terminates as of the date the employment ceases or the date the petition is revoked, whichever is later. The USCIS’ position on how this rule applies to AC21 portability scenarios is as follows: If the beneficiary ports to a new employer and accepts employment with that new employer upon the filing of a new petition, prior to the revocation of the H-1B petition filed by his or her former employer, then the beneficiary will be in an “authorized period of stay” while the newly filed petition is pending (allowing the alien to avoid accruing unlawful presence), but it does NOT extend the alien’s period of authorized status . In other words, provided the Alien has joined the new employer upon the filing of the H-1B petition, the fact that the initial employer then revokes their H-1B petition does not impact the Alien’s period of stay. The Alien’s status, however, will not be extended until the new petition is approved.
Further, in cases where the Alien has lost their job and only joins a new employer after a period of time, the USCIS has clarified that technically that Alien is out of status the day after their job is lost. However, practically speaking the USCIS has been known to overlook short gaps of time in between jobs. For more information, please contact your HLG attorney.